S v Police HC Auckland CRI 2006-404-405

[2006] NZHC 1408

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-405

S

Appellant

v

THE POLICE

Respondent

Hearing:         10 November 2006

Appearances: M Kennedy for appellant

K Glubb for respondent

Judgment:      10 November 2006

JUDGMENT OF ALLAN J

Solicitors:

Crown Solicitor Auckland

M Kennedy, PO Box 6955, Auckland

S V THE POLICE HC AK CRI 2006-404-405  10 November 2006

[1]      This is an appeal brought on an urgent basis by Mr S   against a decision of the District Court at Auckland earlier today, refusing bail and remanding the appellant in custody to a status hearing next Thursday 16 November 2006.

[2]      The background can be shortly stated.  Mr S   has his problems.  He lives in the central city area and appears to have no permanent address.  Ms Kennedy says he has problems with alcohol.   He has  been  before  the  Court  on  a  number  of occasions, mostly for minor offending.  He has been on bail over the last few days on conditions which include a direction that he not go within 100m of Esquires Café in Customs Street.   During this week, there have apparently been several alleged instances when he has been in breach of that condition.

[3]      For present purposes however, it is necessary to refer only to an occasion late last evening when the appellant was allegedly found by a police officer within 100m of the café concerned.

[4]      He appeared in the District Court this morning on a charge of disorderly behaviour which related to an alleged offence on 8 November.   That charge was simply adjourned, to be dealt with at a status hearing next week, along with other matters, but he was also dealt with on the breach of bail matter.

[5]      Ms Kennedy indicated that her instructions were when found, Mr S   was in a position that was more than 100m away from the café concerned, so the police were put on notice that their allegation was challenged.

[6]      While there is no doubt that in a clear case the Court is entitled to act on breach of bail complaints without sworn evidence, here,  given  the  challenge,  it seems to me that the Judge ought not to have found the breach of bail claim proved without sworn evidence.  According to Ms Kennedy, the Judge remanded Mr S   in custody until 16 November without making any formal finding that a breach had occurred.

[7]      I have the utmost sympathy for the learned Judge who was no doubt dealing with the matter in the course of a busy list, and dealing with a person who has become something of a thorn in the side of the police and the District Court. Nevertheless, Mr S   was entitled to expect that the police make out in a formal way, their allegation of breach of bail condition, before he was in jeopardy of a remand in custody.

[8]      From the bar, I have been told that the distance concerned is more than 100m, that distance having been checked by counsel and by another person.  I cannot rely on that indication, which is tendered only in a general sense, but if it is anywhere near correct, and the distance was of the order of 100m, then there may be a real issue as to whether a breach had occurred.

[9]      In those circumstances, the proper course is to allow the appeal.  The effect is that Mr S   is entitled to bail on the existing conditions.  It is appropriate to record I have dealt with this matter at 4 pm on Friday afternoon, without the benefit of any notes from the Judge.  There has simply been no time for that.  I have been heavily dependent upon Ms Kennedy for an account of what occurred, but given her experience and reputation, I am content to act on that.

C J Allan J