Hepi v Police
[2021] NZHC 1916
•27 July 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI 2021-485-54
[2021] NZHC 1916
BETWEEN CARL HEPI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 27 July 2021 Counsel:
J W Griffiths for Appellant J L Garden for Respondent
Judgment:
27 July 2021
JUDGMENT OF MALLON J
Introduction
[1] The appellant appeals a District Court decision recording a breach of bail in the permanent court record. He says the Judge failed to give him an opportunity to be heard and there was insufficient information before the Court to determine whether his explanation for the breach amounted to a reasonable excuse. He also relies on new evidence adduced on appeal.
Background
[2] The appellant faces two charges of contravening a protection order.1 The charges arise out of alleged contact with the complainant on 6 May 2021 in breach of a condition of a protection order made in her favour. It is alleged that on that date he arrived at the complainant’s house uninvited and refused to leave when she told him to do so. He has pleaded not guilty and is awaiting a Judge-alone trial date.
1 Family Violence Act 2018, ss 90(b) and 112(1)(a) (maximum penalty three years’ imprisonment).
HEPI v POLICE [2021] NZHC 1916 [27 July 2021]
[3] On 7 May 2021 he was granted bail with conditions, including a nightly curfew and not to have contact with the complainant. On 27 June 2021 at 1.24 am, police conducted a door knock at the bail address. The appellant did not present at the door. On 9 July 2021 a police constable stopped a car being driven by the complainant. The constable recognised the appellant in the passenger seat and arrested him for breaching his bail by associating with the complainant.
Certification hearing
[4] The appellant first appeared before a Justice of the Peace on 10 July 2021 on the bail breaches, where he was represented by a duty solicitor. He was remanded in custody to appear before a Judge on 12 July 2021 because the Justice of the Peace did not have jurisdiction. The duty solicitor contacted the appellant’s counsel by email, advising that the Police did not oppose bail but were seeking certification of the breaches.
[5] The matter was called before Judge Black on 12 July 2021. The appellant appeared by AVL and shortly before the hearing his counsel obtained instructions from him about the breaches. In accordance with his instructions, his counsel advised the Judge that the appellant had breached the curfew on 27 June 2021 because he had returned to work to collect his personal belongings, including his wallet, which he accidentally left at his work site. Also in accordance with his instructions, his counsel advised the Judge that the appellant was with the complainant, as a passenger in her car, on 9 July because their 12 year old son had gone missing and he was helping her to try and locate him. It was submitted that the Judge might consider the appellant had provided a reasonable excuse in relation to the emergency situation involving the welfare and safety of the appellant’s child.
[6] The Judge asked the police prosecutor for information. A police memorandum, which the appellant’s counsel had not seen, was handed up to the Judge. This set out details of earlier breaches of the curfew. It also advised that on 27 June 2021 the appellant failed to present at the door knock at 1.24 am and that he was arrested on 9 July 2021 because he was located with the complainant. The memorandum recorded his explanation as being that he “had to help look after the kids”.
[7] The Judge certified both breaches. He also directed the Registrar to enter both breaches into the permanent court record. He was not satisfied on the basis of the information provided through counsel that there was a reasonable excuse for being in the company of the complainant in breach of the bail condition. It is accepted that the reason given for this did not amount to a reasonable excuse. It is the entry into the permanent record of the breach through being in the company of the complainant that is now appealed.
The power to certify
[8]Section 39 of the Bail Act provides:
39 Non-performance of condition of bail may be certified and recorded
(1)If a defendant who has been released on bail at any time fails to comply with any condition of bail, a judicial officer may certify on the notice of bail or, as the case may require, the bail bond the non- performance of that condition.
(2)A certificate given by a judicial officer under subsection (1) is, in the absence of proof to the contrary, sufficient evidence for the purposes of sections 24 and 38 that the defendant has failed to comply with the condition of the notice of bail or bail bond specified in the certificate.
(3)In addition to the certification described in subsection (1), if a defendant who has been released on bail at any time fails to comply with any condition of bail, without reasonable excuse, a judicial officer must direct the Registrar that the nature of the condition and the non-performance of the condition be entered in the court record kept in accordance with section 184 of the Criminal Procedure Act 2011.
(4)Despite subsection (3), the judicial officer may decide not to direct that the failure to comply be entered in the court record if in the judicial officer’s opinion the failure to comply is of such a minor nature that it does not warrant being taken into account when considering an application for bail from the defendant on a subsequent occasion.
(5)A failure to comply with any condition of bail that is entered in the court record under subsection (3) may be considered in any subsequent application for bail made by that defendant over his or her lifetime.
…
[9] As discussed in Williams v Police, non-compliance with bail conditions can be marked by the Court in two ways: certification on the notice of bail or the bail bond
(under s 39(1)) and by recording the non-performance of the condition on the permanent court record (under s 39(3)).2 Non-compliance with any condition “may” be certified, and if the failure was “without reasonable excuse” it “must” be entered in the Court record unless the judicial officer considers it is of such a minor nature that it does not warrant being taken into account on subsequent bail occasions. Certification “dies” when the charges are determined. In contrast, recording a breach on the court record stays on the record for future reference.
[10] Section 54A of the Bail Act provides for an appeal against a direction to enter the non-compliance on the court record. As was the case in Williams v Police,3 it is not necessary to determine whether this is a general appeal or an appeal from the exercise of a discretion because it makes no difference to the outcome in this case.
Opportunity to be heard
[11] The appellant submits that the Judge erred by directing the Register to record the breach on the permanent record when there was insufficient information to determine whether the appellant’s explanation was credible. He submits the Judge should have enquired with the Police or the victim advisor to determine whether the complainant, who was present in court, would corroborate the appellant’s explanation. He submits that at the least the Judge should have deferred his decision whether to certify the breach until the determination of the substantive hearing.
[12] The appellant relies on Williams v Police in support of his position. The respondent submits that decision is distinguishable. It submits that, in contrast with the position here, in that case the Police, the appellant and the duty solicitor were all unaware that an alleged breach of bail was going to be considered by the Judge. The duty solicitor was not in a position to inform the Judge that the breach was disputed and to make submissions against certification and recording. In contrast, here the appellant and his counsel were on notice from 10 July 2021. The appellant did not dispute the breach. He gave his instructions to counsel and his explanation was offered
2 Williams v Police [2020] NZHC 1402.
3 At [18]-[20].
to the Judge on 12 July 2021. I agree with the respondent that the appellant therefore had an opportunity to be heard.
[13] I also agree with the respondent that there was no requirement for the Judge to defer his determination on whether to record the breach until the appellant had the opportunity to present sworn evidence or until further information was obtained from the Police about the complainant’s position. If the appellant wished to support his account with a sworn statement, he had the opportunity to do so. It was open to the Judge to have asked if the Police had spoken to the complainant about the circumstances of having the appellant in his car. However, it does not appear that he was aware that the complainant was present in court and there was no request from the appellant’s counsel for those enquiries to be made. Nor did counsel request further time for those enquiries to be made. In these circumstances, the Judge was entitled to reject the appellant’s explanation absent anything supporting it and direct the entry of the breach.
[14] I therefore reject this ground of appeal even though, as I am about to discuss, the outcome would have been different if further enquiries had been made.
New evidence
[15] For the appeal, the respondent has provided a statement from the constable who stopped the complainant’s car and arrested the appellant. The constable says that the appellant asked him multiple times if he could kiss the complainant and said he was finding it hard to stay away. There is no mention of an emergency. The respondent has also provided the job sheet from the sergeant who took custody of the appellant. This records the appellant as saying that he was regularly with the complainant to help her out with the kids, that is why he was with her that morning, and the kids were now at school and that was why they were in the car together. Again, there is no mention of an emergency.
[16] Counsel for the appellant advised that immediately after the District Court hearing on the bail breaches he was approached by the complainant. Counsel had not known she was present. Once he realised who she was, he advised her that he was unable to communicate with her because of the nature of the charge but she could
speak to the victim adviser.4 I was informed by the appellant’s counsel that the complainant was outside the courtroom now. He understood she might support the appellant but had not spoken with the complainant directly because that was not appropriate. He had not been able to file fresh evidence in support of the appeal because of this.
[17] I asked the respondent to speak to the complainant to see if she was willing to come into the court and give evidence about the 9 July 2021 breach. The respondent agreed he could not resist adducing evidence from her given that he had adduced the constable’s statement and the sergeant’s notebook entry in support of the appeal and had commented on the absence of further evidence from the appellant. The respondent spoke to the complainant who confirmed she was willing to give evidence. She was sworn in and asked questions by both counsel and by me.
[18] The complainant said she had been in the District Court in support of the appellant and that was why she was here today. She felt she was to blame for the appellant breaching his bail. She had wanted to say something in the District Court but had not felt comfortable in the court environment. She had not spoken directly to the appellant about wanting to speak on his behalf and they had travelled separately to the Court for this appeal.
[19] The complainant said she had been having trouble with her 12-year-old son, who would not attend school and would leave the house a few days at a time. On the morning of 9 July 2017 she telephoned the appellant to help her find her son who had been away from the house for a few days. She had tried calling her mother and her sister (who had a broken leg) but they could not help. She thought it would be a waste of time to call the police because, if they found and returned him, he would just leave again. She was worried about her boy and he has been beaten up before. Her son was not at school and was away from her house again at the moment.
4 He notes that under the Family Violence Courts National Operating Guidelines (Ministry of Justice, 1 Sept 2008), cl 4.12.6, defence counsel are not permitted to have contact with alleged victims at the Family Violence Court.
[20] The complainant said she called the appellant because he does help her with their children. He is better than her at talking to their son about his actions because the son tends to listen to the appellant more than he listens to her. She normally used family members to arrange for the appellant to help with the children but it was quite hard to do this all the time. She felt she was to blame for calling the appellant to help that morning.
[21] At my invitation, the appellant was also called to give evidence. He was sworn in. He confirmed that it was the complainant who had called him that morning. They first dropped one of their children off at kindergarten. They dropped another son off at Oxford Terrace at about 12.30 and were going to pick up the first child from kindergarten. They were looking out for their 12-year-old son while they were doing this. They were looking at parks in the area. It was while they were on their way to pick up the first child that the police pulled them over.
[22] The appellant confirmed that their 12-year-old son does leave school and home. He would not call it running away, although the boy can be gone for a few days. The boy goes to hang out with his mates because he does not like school and has been bullied there. The appellant said he had done the same when he was a boy in Gisborne. He did not see any point in calling the Police because it was not like his boy was walking the streets at night. He expected to find his boy in one of the parks or at his mate’s place.
[23] The appellant and the complainant had been together for 15 years and he was still involved with the children. It was therefore hard to comply with the condition not to associate with the complainant. However, they normally managed by having other family members make the arrangements so that the appellant did not breach the protection order or his bail. He confirmed that he and the complainant had not travelled together to get to the Court for this appeal.
[24] The appellant was asked why he made no mention of his missing son when he spoke to the constable and the sergeant. He accepted that he had not mentioned this but also said it was not an interview. He did not recall them writing down what he said and he was not asked to sign their notes as accurate. He does not like to speak
too much to the Police anyway. He prefers to speak to his lawyer. He accepted that he had said he wanted to kiss the complainant and it was hard to stay away – he said this was true, given how long they had been together. He accepted he had said he was helping with the kids – which was also true. He said it was not a police emergency, but it was an emergency within the family.
[25] I accept the evidence of the complainant and the appellant. I accept on the basis of that evidence that the circumstances gave rise to a reasonable excuse. The respondent resisted this on the basis that the bail condition was clear and there were other avenues available to find their son, especially as the appellant was not fearful for his safety. However, it was evident that the complainant was more anxious about her son (and was anxious about him being away from home and out of school at the moment). She chose to contact the person she trusted to help her find her boy and talk to him. Her explanation for not calling the police and being unable to get family help was credible.
[26] On the basis of that evidence, I also consider that the breach was “of such a minor nature that it does not warrant being taken into account when considering an application for bail” on a subsequent occasion. The evidence is that the appellant understands he is not to associate with the complainant and has generally complied with it, as has the complainant, although that has been difficult. The appellant was with the complainant at her invitation because of her understandable concern about their son. She was not fearful of the appellant. It was quite different to when the appellant allegedly breached the protection order by coming to the complainant’s house uninvited and failing to leave when asked to do so.
[27] I therefore consider, with the benefit of the evidence before me, that a record of the breach of the bail condition on 9 July 2021 should not have been entered on the permanent record.
Result
[28] The appeal is allowed. The direction to enter on the permanent court record the breach of bail on 9 July 2021 is quashed and the entry is to be removed.
Mallon J
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