The Queen v Bryant

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 434/00

THE QUEEN

CHRISTOPHER JOHN BRYANT

Hearing:	13 February 2001
Coram:	Richardson P Tipping J McGrath J
Appearances:	S Cole for Appellant D J Boldt for Crown
Judgment:	13 February 2001

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

This application for leave to appeal raises a narrow but important question of the relationship between Police bail under s51 of the Summary Proceedings Act 1957 and the bailable as of right provisions of s319 of the Crimes Act 1961 before those sections were repealed and replaced by the Bail Act 2000.
As they read at the relevant time, those sections provided:
Summary Proceedings Act 1957
51(1) Where any person who is charged with an offence for which that person may be proceeded against summarily, and who has been arrested without warrant, cannot be brought immediately before a Court, any constable may, if he or she considers it prudent to do so, take the bail bond of that person.
...
(3)Any bail bond taken pursuant to this section -
(a)May be either with or without sureties as the constable thinks fit; and
(b)Must be in such sum or sums as the constable thinks sufficient; and
(c)Is subject to the condition that, at a time and place to be specified in the bond, being a time not later than 7 days from the date of the bond, the person bailed attend personally before a Court.
(4)Where a person is granted bail pursuant to this section, the constable who takes the bail bond of the person may, in addition to the conditions that may be imposed under subsection (2), also impose any condition that might be imposed by a Court or Justice or Community Magistrate or Registrar under subsection (2) or subsection (3) of section 49.
...
Crimes Act 1961
319(2) Every one is bailable as of right who is charged with any offence for which the maximum punishment is less than 3 years' imprisonment, unless the offence is one against section 194 of this Act (which relates to assault on a child, or by a male on a female) or against section 49(1)(a) or section 49(1)(b) of the Domestic Violence Act 1995 (which relate to contravention of a protection order).
...
(5)Subject to the provisions of section 318 of this Act, every one who is charged with any offence and is not bailable as of right is bailable at the discretion of the Court.
The charges in question were of doing indecent acts carrying a maximum sentence of 2 years imprisonment. Accordingly, s319(2) applied.
The sequence of events is important. During the afternoon of 26 September 1999 Police received a complaint that a man answering the applicant's description had been seen masturbating in a local park. The applicant went with the Police to the station and made a statement denying any such acts. That interview concluded at 5.16 pm. He was arrested and placed in a cell. It may be taken that he was charged within the meaning of s51 in the sense of being advised that he was to be prosecuted and given particulars of the charge he would face. The Police Officer concerned then had to do the necessary paper work. That included completing a charge sheet, preparing the prosecution file, making checks on Mr Bryant and completing the details.
It was while he was doing the paper work, and before he had turned his attention to the question of Police bail, that another Police Officer who had been making similar inquiries asked if he could speak to Mr Bryant. He did so and, after a discussion, started taking a written statement from Mr Bryant at 6.30 pm. Subsequently that evening the first Police Officer prepared a memorandum of grounds for opposing bail which emphasised the number of instances and the perceived risk of further offending. The next morning Mr Bryant was interviewed by another Police Officer in relation to further incidents and made a video statement. In the result he faced six charges when brought before the District Court that morning. Not appreciating that Mr Bryant was bailable by the court as of right, the Judge refused bail but that was corrected on appeal two days later.
Through his counsel Mr Bryant challenged the admission of the statements taken at 6.30 pm on 27 September and on the following morning. Before the District Court, and again in argument today, Mr Cole's short point is that Mr Bryant was bailable as of right, the Police should not have detained him as they did until taking him to court the next morning, and that because of that resulting unlawful detention the two statements obtained in breach of his rights should be held inadmissible.
The District Court Judge held that the Police detention was lawful. He concluded that the use of the phrase "considers it prudent to do so" imports a subjective element which is inconsistent with bail being available as of right and without the exercise of any discretion on the part of the constable (whilst not detracting from the principle that the discretion must be exercised properly). He held that the Police Officer had exercised his discretion not to grant bail to the accused on the day of his arrest, pursuant to s51.
We are satisfied that the Judge correctly interpreted and applied the legislation. Section 319 and s51 served different purposes and provided separate routes by which a defendant might be admitted to bail. By s319 a person to whom the section applied had a right to be bailed when brought before a court upon such conditions as the court deemed appropriate. Section 319(2) did not state explicitly by whom the person was bailable. In context it can only sensibly refer to bail by the court. The surrounding sections, ss318‑320C, were all directed to grants of bail by a court (Court of Appeal, High Court or District Court), and s319(5) supports that conclusion. Any such person who "is not bailable as of right [by the court] is bailable at the discretion of the court".
Section 51 is directed to Police bail. It confers a broad discretion to admit defendants to bail where the conditions for Police bail are met. On its face the discretion exists whether or not the defendant would be bailable as of right if brought before a court. The pre‑condition that it applies only where the defendant cannot be brought immediately before a court, and the requirement that the constable consider whether it is prudent to grant bail, reflect the public policies involved. The pre‑condition reflects, as does the requirement of s316(5) of the Crimes Act 1961 and s23(3) of the Bill of Rights, that everyone arrested for an offence and not released "shall be brought as soon as possible before a court ...", the common law duty of the arresting officer to take the person arrested before a Justice of the Peace or a Judge as soon as the officer can do so (R v Te Kira [1993] 3 NZLR 257). At common law the Police had no power to grant bail. Section 51 confers that authority while not derogating from the duty to bring the defendant before the court. And prudence requires constables to consider whether a defendant can be safely released until he or she becomes the responsibility of the court. In that regard, too, constables exercising their discretion are expected to weigh as well as those matters other criteria including any risk of offending during that period. Section 51 is thus entirely consistent with s24(b) of the Bill of Rights which affirms the right of everyone charged with an offence to be released on reasonable terms and conditions "unless there is just cause for continued detention".
As Mr Boldt emphasised in his submissions for the Crown, Police may prudently decide that a defendant who is intoxicated, aggressive, making threats or showing signs of being suicidal should be kept in Police custody until he or she can become the responsibility of the court. As well, the separate nature of the two regimes for bail, namely bail by the court and Police bail before the defendant becomes the responsibility of the court, is reinforced by the repeating of the same stipulation in both sections (s319(6) and s51(2)) that the need to protect the complainant must be paramount in cases where a defendant has allegedly breached a protection order. Further, the expression "charged" in s319 may well be directed to charged before the court. Historically, s156 of the Justices of the Peace Act 1882 was directed to persons "charged before a Justice" and s345 of the Criminal Code Act 1893, the first statute adopting the formula bailable as of right provided in subs (5), "Every one bailable of right shall be released at any stage of the proceedings ... upon providing sureties sufficient in the opinion of the Justices to secure his appearance, or upon his own recognisance if they think fit."
In short, there are none of the indicators that could be expected if the Parliamentary intent was that the two provisions should be read together, with s51 being subject to s319. The sections operated in tandem but separately and at different points in time, and were intended to do so. Section 51 was the only provision authorising Police Officers to grant bail. It was couched as a discretionary power, not as a duty to grant bail with or without conditions, if the person concerned would later be bailable as of right by the court in terms of s319.
Mr Cole submitted that the Police do not have express authority to detain post‑arrest and charge and s51 is to be read as a mechanical provision which confers a power to be exercised in accordance with statutory policy, including, where applicable, s319. To adopt that interpretation would necessarily involve distorting the straightforward meaning of s51 and would lead to results which could not reasonably have been contemplated by the legislature. Section 51 confers authority to bail unqualified by reference to any governing criteria such as bailable as of right. It has its own self‑contained criterion of prudence which in its terms is inconsistent with bailing as of right and Mr Cole's suggested interpretation would preclude continued detention in Police custody in circumstances where it would be prudent to do so, such as where there are legitimate concerns as to the safety, both of the person concerned and the public, and where there may be a risk of non‑attendance at court or of offending before the person arrested comes before the court. The premise underlying s51 is that unless in the exercise of the statutory power the person concerned is bailed, he or she will continue to be detained by the Police until they fulfil their obligation to bring him or her before the court as soon as possible.
For the reasons given the application is granted but the appeal is dismissed.

Solicitors
Crown Law Office, Wellington

[2001] NZCA 17

13 February 2001