W v Police HC Rotorua CRI 2007-463-50

[2007] NZHC 1817

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2007-463-000050

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 June 2007

Appearances: P M Hardie for Appellant

A F Pilditch for Respondent

Judgment:      8 June 2007

JUDGMENT OF KEANE J

Solicitors:

Jones Howden, Solicitors, Matamata

Gordon Pilditch, Office of the Crown Solicitor, Rotorua

W V  POLICE HC ROT CRI 2007-463-000050  8 June 2007

[1]      On 9 February 2007 W   appeared in the Tokoroa District Court, having  pleaded  to  careless  driving  and  excess  breath  alcohol,  apparently  for sentence. He then faced other more serious charges alleging violence or threats of violence to which he had pleaded not guilty. He was not then represented and all needed to be advanced.  The Judge enlisted Mr W  ’s present counsel, who had appeared for him before.

[2]      Ultimately the Judge decided to revoke Mr W  ’s bail and remanded him in custody, a decision that has since been set aside by this Court on appeal.  There was, however, another direction the Judge apparently made that did not immediately come to light. It is the subject of this present appeal. The Judge, having directed that the police take from Mr W   a sleeveless leather jacket with a Black Power insignia, later in the day seemingly directed the police to destroy it and others seized.

[3]      On this appeal Mr W   contends the judge had no power, express or implied, to make any such order, or any justification. Others whose jackets were seized, also the subject of the direction the Judge seemingly gave, wish the police to return their jackets as well.

Context

[4]      When on 9 February Mr W   appeared for sentence the more serious charges were not then apparently set down and it is unlikely that he anticipated, as to those charges, that his bail would be revoked. For that reason, perhaps, he complied in a qualified way with the policy that gang patches are not to be worn in court. He wore his jacket in reverse, concealing the insignia. When he was stood down in custody, however, to see his former counsel, that immediately changed.

[5]      Anticipating, presumably, that his jacket might be confiscated Mr W   took it  off and balled  it  in his hand. The Judge, noting that, and understanding immediately the reason why, directed a constable to take the jacket. Mr W   said that he wanted to give it to his mate because it had nothing in it.  When the Judge repeated his direction, Mr W   threw the jacket instead to an associate at the

back of the Court. The Judge stood him down in custody, but not explicitly for contempt. He had decided that beforehand. A little later the Judge remanded Mr W   in custody, denying him bail, the decision since set aside on appeal; and in the course of that decision the Judge said this:

You appeared in Court today wearing a gang patch.  When I told you to take it off and advised or requested a Police officer to take that gang patch from you your response was to throw it across the Courtroom to one of your gang associates sitting at the back of the Court.  That is an attitude that is clearly indicative.  In other words I get the distinct impression that you did not care a jot about this Courtroom, indeed the laws of the land.

[6]      Late in the afternoon before the Court adjourned, as appears only from a note on the tape record log, when neither Mr W   nor his counsel were present, the Judge is said to have directed the police to destroy the jacket and seemingly at least one other. That remained undisclosed and undiscovered.  Mr W  ’s counsel did not know of it at the date of the bail appeal, 2 March 2007, when Mr W   was allowed bail. It only came to light later. Immediately, Mr W   appealed.

[7]      This issue is before me by way of appeal, and as counsel for the police says, is not a direction obviously susceptible of appeal. If anything, it is only susceptible of review. There has to be an issue, however, whether the Judge made any decision at all, let alone one within his power. To require an application for review to say that seems to me disproportionate. It can be said equally well on this appeal,  in the exercise of this Court’s inherent supervisory jurisdiction.

Conclusions

[8]      There is first an issue whether the Judge purported to make any direction with binding effect. Neither Mr W  , nor his counsel, were present. I have nothing from any police or court officer who was. The judge did not record the fact or basis or reasons for his direction, if direction it was, on any of the informations in respect of which Mr W   was appearing on 2 February.  Nor is there any independent record.  Had the  Judge  intended  his direction  be  binding,  he  would  surely  have recorded it and the reasons why.

[9]      Secondly, and equally, there is no basis apparent on which the Judge could have made any such order. He did not have any express power to do so. Mr W   was not charged with any offence in which the jacket played a part. None of the related express powers could conceivably apply. Section 206 of the Summary Proceedings Act did give the Judge power to sanction Mr W   for contempt but he did not do so. The Judge might have had implied power in contempt to have the jacket seized. He had no implied power to direct that it be destroyed.

[10]     Thirdly, if the Judge did have some power, express or implied, he would still have had to exercise it judicially. He would have had to hear Mr W   or his counsel first and then, identifying the factors for and against the exercise of the power, articulate why he intended to exercise it. The Judge’s concern that  gang patches not be worn in Court was proper and is to be supported. As against that, Mr W   had attempted in a qualified way to comply with the policy. He was not then in frank contempt. When he threw the jacket to his associate, that could have been a contempt but the Judge did not treat it that way. What then was the consideration that compelled an order for destruction?

[11]     As to that, I need not express any view. The most that I need do is to confirm on this appeal that if the Judge did direct the police to destroy the jacket, intending that to be complied with, there is no identifiable basis in law for the direction and the police cannot be bound by it. To the contrary, they have no continuing authority to hold the jacket and must return it to Mr W  . That conclusion extends to any other jackets held by the police as a result of the direction given by the Judge that

day.

P.J. Keane  J