N v Police HC Rotorua CRI 2007-463-89

[2007] NZHC 2109

This case has been anonymized

ORDER PROHIBITING PUBLICATION OF ANY PART OF THE PROCEEDINGS (EXCEPT THE OUTCOME) UNTIL FINAL DISPOSITION OF TRIAL

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2007-463-89

BETWEEN  N

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         12 September 2007

Counsel:        A Ngapo-Lipscombe and S Ngapo-Lipscombe for Appellant

J D Munro for Respondent

Judgment:      12 September 2007

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Rotorua

Ngapo-Lipscombe Law, Tokoroa

N V NEW ZEALAND POLICE HC ROT CRI 2007-463-89  12 September 2007

Introduction

[1]      Mr N   appeals against the imposition of terms of bail following a hearing in the District Court at Tokoroa on 18 July 2007.   The complaint centres around terms imposing a curfew and abstention from alcohol.

[2]      The question of bail arose in the course of a busy list and no reasons were given  by the Judge  for the  imposition of the  terms.    In  those  circumstances,  I consider afresh whether those terms were justified.

Background facts

[3]      Mr N   was charged with two counts of theft arising out of incidents on

2 and 9 February 2007.  The alleged thefts involved The Warehouse at Tokoroa and the taking of DVDs, a shirt and a kitchen knife.  Mr N   was granted bail on those charges on 10 February 2007, by a Justice of the Peace.  The terms included a residence condition, a non-association condition involving staff at The Warehouse in Tokoroa, a reporting clause and a requirement not to consume alcohol or intoxicating substances.

[4]      When  Mr  N    came  before  the  court  on  those  charges  he  was  on remand for other alleged offending.  He was subsequently acquitted of those charges and no further consideration need be given to them.

[5]      On 5 July 2007, a further information was laid against Mr N   relating to a charge of theft arising out of an incident at Countdown supermarket at Tokoroa. Goods to the value of $62 were removed that day.

[6]      There have been breaches of bail.  The reporting clause was breached on 13

February 2007.  That was met by a variation to the terms of reporting.  There was a further breach on 18 July 2007 when the curfew requirement was imposed in substitution for the reporting clause.  On 2 August 2007, there was a breach of the

curfew.  However, a Justice of the Peace, while directing that the breach be recorded, renewed the appellant’s bail.

Submissions on appeal

[7]      Ms Ngapo-Lipscombe,  for Mr  N  ,  submits that  the  Judge  erred  in principle in failing to consider whether there was a sufficient nexus between the terms of bail requiring compliance with a curfew and abstention from alcohol.  In the context of the alleged offending, neither condition appeared to directly address any concern arising out of the particular charge.

[8]      Mr Munro concedes a lack of nexus for the abstention from alcohol term but submits the curfew was justified.

Analysis

[9]      The approach to  an appeal against  the imposition of a term of bail was considered by the Court of Appeal in R v Keefe (CA162/04, 22 July 2004).  The first inquiry is whether the court is satisfied of the need for continued detention, having regard to s 7(5) of the Bail Act 2000 and s 24(b) of the New Zealand Bill of Rights Act  1990.   If not so satisfied,  the  Court  must  determine  “reasonable  terms and conditions” on which the alleged offender ought to be released on bail.

[10]     The Court said:

[20]   In determining what terms of bail are “reasonable” the Court must balance the likely restrictions on an alleged offender's liberty (on the one hand)  against  the  interests  of  the  community  in  ensuring  that  alleged offenders do not flee, interfere with evidence or re-offend while awaiting trial (on the other).  Viewed in that way “reasonable terms and conditions” of bail can be seen as part of a process of managing the risks of flight, interference with evidence and re-offending.  Terms of bail should reflect the least   restrictive   outcome   possible   consistent   with   the   community's expectation that adherence to bail terms will be properly monitored.

[11]     Mr  Munro  has  sought  to  support  the  curfew  condition  based  on  Mr

N  ’s history of previous offending and the fact that some may have occurred

at night.   Ms Ngapo-Lipscombe submits that a curfew is not required to meet the present needs of the community in managing the bail risks.

[12]     I am satisfied that the term dealing with alcohol was not justified.  There is no suggestion of alcohol-fuelled offending.  In those circumstances, there is no nexus between that condition and the alleged offending.

[13]     So far as the curfew is concerned, the observations of the Court of Appeal in R v Fatu (CA454/05, 15 December 2005) govern the position.   As a  matter of principle, the Court of Appeal, through Anderson P, said:

[8] This case is apt for an observation by this Court of the need to analyse the need for the justification for, and efficacy of, unusual terms of bail.  The Bail Act is coloured by the rights assured to everyone within New Zealand by the New Zealand Bill of Rights Act 1990.  In the particular case there is a constraint on the right to freedom of movement assumed by s 18 of [the Bill of Rights]. That restriction takes the form of those specific terms of bail to which we have adverted.  Section 18 of [the Bill of Rights] simply reinforces the necessity for close examination of the justification for unusual terms of bail.

[14]     In my view, there is insufficient nexus between the curfew and the alleged offending to justify the interference with the freedom of movement guaranteed by the New Zealand Bill of Rights Act.  For the reasons given by the Court of Appeal in Fatu, by which I am bound, that condition cannot be justified.

[15]     However, I am of the view that there is some need to monitor Mr N  ’s movement during the hours up to his present curfew time of 8pm.  That, however, can be achieved through a monitoring process such as reporting, as opposed to a curtailment of his freedom of movement between the hours in issue.

[16]     For that reason, I will be substituting for the term of bail requiring a curfew, a reporting requirement at the Tokoroa police station on each Monday, Wednesday and Friday, between the hours of 5pm and 8pm.   That will address many of the concerns of the Police.

Result

[17]     For the reasons given, the appeal is allowed and the terms of bail requiring Mr N   to submit  to a curfew and not to  consume alcohol or intoxicating substances are deleted from conditions of bail.

[18]     In lieu thereof, however, bail is varied so that Mr N   must report to the Tokoroa  police  station  between  the  hours  of  5pm  and  8pm  each  Monday, Wednesday and Friday.    Allowing  for  further  agreed  variations,  Mr  N  ’s terms of bail will now be:

a)        To reside at 11B Billah Street, Tokoroa.

b)       Not to go to Countdown supermarket, Tokoroa. c)     Not to go to The Warehouse, Tokoroa.

d)       To report to the Tokoroa Police Station between the hours of 5pm and

8pm each Monday, Wednesday and Friday.

P R Heath J