Police v E HC Wellington CRI 2007-485-28

[2007] NZHC 337

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2007-485-28

NEW ZEALAND POLICE

Appellant

v

E

Respondent

Hearing:         17 April 2007

Appearances: N Chisnall for appellant

K Smith for respondent

Judgment:      19 April 2007 at 4:30 p.m.

JUDGMENT OF MacKENZIE J

This judgment was delivered by Justice MacKenzie on 19 April 2007 at 4:30 p.m. pursuant to r 540(4) of the High Court Rules 1985.

Solicitors:

Luke Cunningham & Clere, Office of the Crown Solicitor, PO Box 10357, Wellington (Fax: 04-471

2065)

Mr K Smith, P C Gilbert, Solicitor, PO Box 2420, Wellington (Fax: [phone])

NZ POLICE V E HC WN CRI 2007-485-28  19 April 2007

[1]      This is an appeal by the Crown against the decision of the District Court, presided over by two Justices of the Peace, to grant bail to the respondent on one charge of breach of a protection order and one charge of breach of bail conditions.

[2]      The   respondent   currently   faces   six   charges,   all   involving   the   same complainant, who has recently separated from the respondent and is the mother of two young children of the respondent.  On the first four charges, the respondent had appeared on 9 March 2007 and been granted bail, on terms which included a final warning that “any further breach of protection order or bail conditions will result in remand in custody”.  While subject to that bail, the respondent was driving through Levin, were the complainant’s sister has a hair salon.  He was in a car travelling with Mr and Mrs Napier.  The complainant was visiting her sister at that time.  Contact occurred between the respondent and the complainant, in circumstances which led to the two charges on which the respondent appeared on 22 March.  At that appearance, Police opposed bail.

[3]      The  Judge  presiding  in  the  Porirua  District  Court  on  that  occasion  was apparently disqualified from hearing the application, and it was considered by two Justices of the Peace.   Counsel for the respondent sought to adduce oral evidence, from the respondent  and from Mr and Mrs Napier, about what  had taken place between the complainant and the respondent on 20 March.  That course was opposed by Police.  It was allowed by the Justices of the Peace after considering submissions. They heard evidence from those three witnesses, and gave an oral decision granting bail.  Regrettably, the transcript of that decision records much of it as inaudible, to the extent that it is difficult to glean from the transcript of the decision the full extent of the reasoning.  The outcome was that bail was allowed, on the conditions of the existing bail, with a new term, the intent of which was to reinforce the protection against contact with the complainant.

[4]      Counsel for the appellant submits that the Justices of the Peace erred in law in granting the respondent bail, and in particular that they incorrectly applied s 20(2) of the Bail Act 2000 (“the Act”).   Counsel submits that in receiving evidence on behalf of the respondent the Court failed to adequately account for the requirement

in s 8(4) of the Act that the need to protect an alleged victim of domestic violence is the paramount consideration.  Counsel submits that the Court was not entitled to rely upon  evidence  received  from  the  respondent  and  Mr  and  Mrs  Napier  without allowing the appellant the opportunity to call evidence in response.   Alternatively, the appellant submits that the Court was not entitled to make a finding of credibility adverse to the complainant without allowing that evidence to be tested.

[5]      Counsel referred to the decision of the Court of Appeal in R v Tonihi [1995] 1

NZLR 154 as to the appropriate procedure to be followed on a bail hearing when essential facts are disputed.   Eichelbaum CJ noted that the mode of putting information before the Court on such an application has to be considered in the light of the practicalities of the situation, which include that there are many bail applications daily, and consonant with the priority accorded to matters affecting the liberty of the  subject,  the  Courts  need to  be  able  to  deal with  them promptly. Practical procedures which do  not  encourage the development  of mini trials are necessary, and depending on the circumstances  it  may be appropriate and  most expeditious to take oral evidence.

[6]      The practicalities to which the Court of Appeal referred have, to some extent, been recognised in s 20 of the Act, which provides:

20     Evidence in bail hearing

(1)       In hearing an application for bail a court may receive as evidence any statement, document, information, or matter that it considers relevant, whether or not it would be otherwise admissible in a court of law.

(2)       Despite subsection (1), when considering the matter  described in section 8(2)(b),—

(a)       the   court   may   only   consider   a   statement,   document, information, or matter that would be admissible in a court of law if made by the appropriate person or given or produced in proper form; but

(b)       for  the  purpose  of  the  bail  hearing,  it  does  not  matter whether the evidence-

(i)       is given or produced by the appropriate person or given or produced in sworn or unsworn form; or

(ii)      is otherwise given or produced in a form in which it would be admissible in a court of law.

[7]      The decision to hear evidence on behalf of the respondent, and to proceed with the bail application on that day, is one which was within the scope of the discretion of the Justices of the Peace as to how the hearing of the bail application should be conducted.  However, in hearing oral evidence from one side, but not the other, particular care was necessary.  In particular, it was necessary to bear in mind that as well as the evidence from the respondent and Mr and Mrs Napier as to what occurred between the respondent and the complainant, there was also evidence from the complainant and her sister.  That evidence took the form of the statements which had been taken by the investigating Constables, and at that stage, they were in the form of handwritten statements in the officers’ notebooks.   Those were admissible under s 22.   Those statements, untested at that stage, are at variance, in important respects, with the with the evidence of Mr and Mrs Napier and the respondent.  For the purpose of assessing the strength of the case under s 8(2)(b) of the Act, the Justices were entitled to take into account the evidence which they heard.  They were not,  however,  entitled to  make  findings of fact  based on that  evidence,  if  such findings   would   necessarily  involve   a   finding   of  credibility   adverse   to   the complainant and her sister, in circumstances where they did not hear their evidence. The inadequacy of the recording of their decision means that it is not possible to be confident that the Justices did not exceed the permitted bounds in their use of the evidence of the witnesses heard by them.

[8]      It  is  also  to  be  borne  in  mind  that  the  strength  of the  case  against  the respondent was only one of the issues which the Court was required to consider. There was no onus on the prosecution, at the bail hearing, to prove that the contact between the complainant and the respondent was a breach of the existing conditions of bail.  Police were not seeking to have the existing bail revoked because of non- compliance with a condition.  Had that been the case, then under s 35 there would have been an onus on the prosecution to satisfy the Court that there had been a failure to comply with the condition.   Here, the respondent had been charged with additional offending resulting from the contact between the complainant  and the respondent, which required consideration of bail afresh, for that alleged offending. On that question, the considerations in s 8 of the Act were relevant.   Of particular importance were the considerations in s 8(1)(b) and (c), and s 8(4).   Because the transcript of their reasons is incomplete, I cannot be confident that the correct legal

test as to whether bail should be granted was adopted, or whether undue attention was focussed on whether the contact was a breach of the existing bail, rather than on the implications of that contact for the other issues under s 8.

[9]      For these reasons, I have reached the conclusion that the application for bail must  be  reconsidered.     I  was  informed  from  the  bar  that  there  have  been developments which may well be relevant to the question of bail.   In those circumstances, I consider that the better course is to remit the application to the District Court for rehearing, in the light of the circumstances as they now are.

[10]     The appeal is accordingly allowed and the matter is remitted to the District

Court for reconsideration of the application for bail.

MacKenzie J