HEPI v POLICE [2021] NZHC 1916

HEPI v POLICE [2021] NZHC 1916 [27 July 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI 2021-485-54[2021] NZHC 1916BETWEEN CARL HEPIAppellantAND NEW ZEALAND POLICERespondentHearing: 27 July 2021Counsel: J W Griffiths for AppellantJ L Garden for RespondentJudgment: 27 July 2021JUDGMENT OF MALLON JIntroduction[1] The appellant appeals a District Court decision recording a breach of bail inthe permanent court record. He says the Judge failed to give him an opportunity to beheard and there was insufficient information before the Court to determine whetherhis explanation for the breach amounted to a reasonable excuse. He also relies on newevidence adduced on appeal.Background[2] The appellant faces two charges of contravening a protection order.1 Thecharges arise out of alleged contact with the complainant on 6 May 2021 in breach ofa condition of a protection order made in her favour. It is alleged that on that date hearrived at the complainant's house uninvited and refused to leave when she told himto do so. He has pleaded not guilty and is awaiting a Judge-alone trial date.1 Family Violence Act 2018, ss 90(b) and 112(1)(a) (maximum penalty three years' imprisonment).[3] On 7 May 2021 he was granted bail with conditions, including a nightly curfewand not to have contact with the complainant. On 27 June 2021 at 1.24 am, policeconducted a door knock at the bail address. The appellant did not present at the door.On 9 July 2021 a police constable stopped a car being driven by the complainant. Theconstable recognised the appellant in the passenger seat and arrested him for breachinghis bail by associating with the complainant.Certification hearing[4] The appellant first appeared before a Justice of the Peace on 10 July 2021 onthe bail breaches, where he was represented by a duty solicitor. He was remanded incustody to appear before a Judge on 12 July 2021 because the Justice of the Peace didnot have jurisdiction. The duty solicitor contacted the appellant's counsel by email,advising that the Police did not oppose bail but were seeking certification of thebreaches.[5] The matter was called before Judge Black on 12 July 2021. The appellantappeared by AVL and shortly before the hearing his counsel obtained instructions fromhim about the breaches. In accordance with his instructions, his counsel advised theJudge that the appellant had breached the curfew on 27 June 2021 because he hadreturned to work to collect his personal belongings, including his wallet, which heaccidentally left at his work site. Also in accordance with his instructions, his counseladvised the Judge that the appellant was with the complainant, as a passenger in hercar, on 9 July because their 12 year old son had gone missing and he was helping herto try and locate him. It was submitted that the Judge might consider the appellant hadprovided a reasonable excuse in relation to the emergency situation involving thewelfare and safety of the appellant's child.[6] The Judge asked the police prosecutor for information. A police memorandum,which the appellant's counsel had not seen, was handed up to the Judge. This set outdetails of earlier breaches of the curfew. It also advised that on 27 June 2021 theappellant failed to present at the door knock at 1.24 am and that he was arrested on9 July 2021 because he was located with the complainant. The memorandum recordedhis explanation as being that he "had to help look after the kids".[7] The Judge certified both breaches. He also directed the Registrar to enter bothbreaches into the permanent court record. He was not satisfied on the basis of theinformation provided through counsel that there was a reasonable excuse for being inthe company of the complainant in breach of the bail condition. It is accepted that thereason given for this did not amount to a reasonable excuse. It is the entry into thepermanent record of the breach through being in the company of the complainant thatis now appealed.The power to certify[8] Section 39 of the Bail Act provides:39 Non-performance of condition of bail may be certified andrecorded(1) If a defendant who has been released on bail at any time fails tocomply with any condition of bail, a judicial officer may certify onthe notice of bail or, as the case may require, the bail bond the non-performance of that condition.(2) A certificate given by a judicial officer under subsection (1) is, in theabsence of proof to the contrary, sufficient evidence for the purposesof sections 24 and 38 that the defendant has failed to comply with thecondition of the notice of bail or bail bond specified in the certificate.(3) In addition to the certification described in subsection (1), if adefendant who has been released on bail at any time fails to complywith any condition of bail, without reasonable excuse, a judicialofficer must direct the Registrar that the nature of the condition andthe non-performance of the condition be entered in the court recordkept in accordance with section 184 of the Criminal Procedure Act2011.(4) Despite subsection (3), the judicial officer may decide not to directthat the failure to comply be entered in the court record if in thejudicial officer's opinion the failure to comply is of such a minornature that it does not warrant being taken into account whenconsidering an application for bail from the defendant on a subsequentoccasion.(5) A failure to comply with any condition of bail that is entered in thecourt record under subsection (3) may be considered in anysubsequent application for bail made by that defendant over his or herlifetime.[9] As discussed in Williams v Police, non-compliance with bail conditions can bemarked by the Court in two ways: certification on the notice of bail or the bail bond(under s 39(1)) and by recording the non-performance of the condition on thepermanent court record (under s 39(3)).2 Non-compliance with any condition "may"be certified, and if the failure was "without reasonable excuse" it "must" be entered inthe Court record unless the judicial officer considers it is of such a minor nature thatit does not warrant being taken into account on subsequent bail occasions.Certification "dies" when the charges are determined. In contrast, recording a breachon the court record stays on the record for future reference.[10] Section 54A of the Bail Act provides for an appeal against a direction to enterthe non-compliance on the court record. As was the case in Williams v Police,3 it isnot necessary to determine whether this is a general appeal or an appeal from theexercise of a discretion because it makes no difference to the outcome in this case.Opportunity to be heard[11] The appellant submits that the Judge erred by directing the Register to recordthe breach on the permanent record when there was insufficient information todetermine whether the appellant's explanation was credible. He submits the Judgeshould have enquired with the Police or the victim advisor to determine whether thecomplainant, who was present in court, would corroborate the appellant's explanation.He submits that at the least the Judge should have deferred his decision whether tocertify the breach until the determination of the substantive hearing.[12] The appellant relies on Williams v Police in support of his position. Therespondent submits that decision is distinguishable. It submits that, in contrast withthe position here, in that case the Police, the appellant and the duty solicitor were allunaware that an alleged breach of bail was going to be considered by the Judge. Theduty solicitor was not in a position to inform the Judge that the breach was disputedand to make submissions against certification and recording. In contrast, here theappellant and his counsel were on notice from 10 July 2021. The appellant did notdispute the breach. He gave his instructions to counsel and his explanation was offered2 Williams v Police [2020] NZHC 1402.3 At [18]-[20].to the Judge on 12 July 2021. I agree with the respondent that the appellant thereforehad an opportunity to be heard.[13] I also agree with the respondent that there was no requirement for the Judge todefer his determination on whether to record the breach until the appellant had theopportunity to present sworn evidence or until further information was obtained fromthe Police about the complainant's position. If the appellant wished to support hisaccount with a sworn statement, he had the opportunity to do so. It was open to theJudge to have asked if the Police had spoken to the complainant about thecircumstances of having the appellant in his car. However, it does not appear that hewas aware that the complainant was present in court and there was no request fromthe appellant's counsel for those enquiries to be made. Nor did counsel request furthertime for those enquiries to be made. In these circumstances, the Judge was entitled toreject the appellant's explanation absent anything supporting it and direct the entry ofthe breach.[14] I therefore reject this ground of appeal even though, as I am about to discuss,the outcome would have been different if further enquiries had been made.New evidence[15] For the appeal, the respondent has provided a statement from the constablewho stopped the complainant's car and arrested the appellant. The constable says thatthe appellant asked him multiple times if he could kiss the complainant and said hewas finding it hard to stay away. There is no mention of an emergency. Therespondent has also provided the job sheet from the sergeant who took custody of theappellant. This records the appellant as saying that he was regularly with thecomplainant to help her out with the kids, that is why he was with her that morning,and the kids were now at school and that was why they were in the car together. Again,there is no mention of an emergency.[16] Counsel for the appellant advised that immediately after the District Courthearing on the bail breaches he was approached by the complainant. Counsel had notknown she was present. Once he realised who she was, he advised her that he wasunable to communicate with her because of the nature of the charge but she couldspeak to the victim adviser.4 I was informed by the appellant's counsel that thecomplainant was outside the courtroom now. He understood she might support theappellant but had not spoken with the complainant directly because that was notappropriate. He had not been able to file fresh evidence in support of the appealbecause of this.[17] I asked the respondent to speak to the complainant to see if she was willing tocome into the court and give evidence about the 9 July 2021 breach. The respondentagreed he could not resist adducing evidence from her given that he had adduced theconstable's statement and the sergeant's notebook entry in support of the appeal andhad commented on the absence of further evidence from the appellant. The respondentspoke to the complainant who confirmed she was willing to give evidence. She wassworn in and asked questions by both counsel and by me.[18] The complainant said she had been in the District Court in support of theappellant and that was why she was here today. She felt she was to blame for theappellant breaching his bail. She had wanted to say something in the District Courtbut had not felt comfortable in the court environment. She had not spoken directly tothe appellant about wanting to speak on his behalf and they had travelled separately tothe Court for this appeal.[19] The complainant said she had been having trouble with her 12-year-old son,who would not attend school and would leave the house a few days at a time. On themorning of 9 July 2017 she telephoned the appellant to help her find her son who hadbeen away from the house for a few days. She had tried calling her mother and hersister (who had a broken leg) but they could not help. She thought it would be a wasteof time to call the police because, if they found and returned him, he would just leaveagain. She was worried about her boy and he has been beaten up before. Her son wasnot at school and was away from her house again at the moment.4 He notes that under the Family Violence Courts National Operating Guidelines (Ministry ofJustice, 1 Sept 2008), cl 4.12.6, defence counsel are not permitted to have contact with allegedvictims at the Family Violence Court.[20] The complainant said she called the appellant because he does help her withtheir children. He is better than her at talking to their son about his actions becausethe son tends to listen to the appellant more than he listens to her. She normally usedfamily members to arrange for the appellant to help with the children but it was quitehard to do this all the time. She felt she was to blame for calling the appellant to helpthat morning.[21] At my invitation, the appellant was also called to give evidence. He was swornin. He confirmed that it was the complainant who had called him that morning. Theyfirst dropped one of their children off at kindergarten. They dropped another son offat Oxford Terrace at about 12.30 and were going to pick up the first child fromkindergarten. They were looking out for their 12-year-old son while they were doingthis. They were looking at parks in the area. It was while they were on their way topick up the first child that the police pulled them over.[22] The appellant confirmed that their 12-year-old son does leave school andhome. He would not call it running away, although the boy can be gone for a fewdays. The boy goes to hang out with his mates because he does not like school andhas been bullied there. The appellant said he had done the same when he was a boyin Gisborne. He did not see any point in calling the Police because it was not like hisboy was walking the streets at night. He expected to find his boy in one of the parksor at his mate's place.[23] The appellant and the complainant had been together for 15 years and he wasstill involved with the children. It was therefore hard to comply with the condition notto associate with the complainant. However, they normally managed by having otherfamily members make the arrangements so that the appellant did not breach theprotection order or his bail. He confirmed that he and the complainant had nottravelled together to get to the Court for this appeal.[24] The appellant was asked why he made no mention of his missing son when hespoke to the constable and the sergeant. He accepted that he had not mentioned thisbut also said it was not an interview. He did not recall them writing down what hesaid and he was not asked to sign their notes as accurate. He does not like to speaktoo much to the Police anyway. He prefers to speak to his lawyer. He accepted thathe had said he wanted to kiss the complainant and it was hard to stay away – he saidthis was true, given how long they had been together. He accepted he had said he washelping with the kids – which was also true. He said it was not a police emergency,but it was an emergency within the family.[25] I accept the evidence of the complainant and the appellant. I accept on thebasis of that evidence that the circumstances gave rise to a reasonable excuse. Therespondent resisted this on the basis that the bail condition was clear and there wereother avenues available to find their son, especially as the appellant was not fearful forhis safety. However, it was evident that the complainant was more anxious about herson (and was anxious about him being away from home and out of school at themoment). She chose to contact the person she trusted to help her find her boy and talkto him. Her explanation for not calling the police and being unable to get family helpwas credible.[26] On the basis of that evidence, I also consider that the breach was "of such aminor nature that it does not warrant being taken into account when considering anapplication for bail" on a subsequent occasion. The evidence is that the appellantunderstands he is not to associate with the complainant and has generally compliedwith it, as has the complainant, although that has been difficult. The appellant waswith the complainant at her invitation because of her understandable concern abouttheir son. She was not fearful of the appellant. It was quite different to when theappellant allegedly breached the protection order by coming to the complainant'shouse uninvited and failing to leave when asked to do so.[27] I therefore consider, with the benefit of the evidence before me, that a recordof the breach of the bail condition on 9 July 2021 should not have been entered on thepermanent record.Result[28] The appeal is allowed. The direction to enter on the permanent court recordthe breach of bail on 9 July 2021 is quashed and the entry is to be removed.Mallon J