GARDNER v NEW ZEALAND POLICE [2020] NZHC 1805

GARDNER v NEW ZEALAND POLICE [2020] NZHC 1805 [24 July 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000078[2020] NZHC 1805BETWEEN STEVEN CAMPBELL GARDNERAppellantAND NEW ZEALAND POLICERespondentHearing: 23 July 2020Appearances: Appellant in personM McClenaghan for the RespondentJudgment: 24 July 2020JUDGMENT OF DOOGUE JThis judgment was delivered by meon 24 July 2020 at 9.00 amRegistrar/ Deputy RegistrarDate:Solicitors:Crown Solicitor, ChristchurchIntroduction[1] The appellant, Mr Gardner, entered into a bond to keep the peace on2 June 2020 for a term of six months, with a forfeiture sum of $300.1[2] The bond was issued under s 367 of the Criminal Procedure Act 2011 (CPA).Mr Gardner appeals against this order on the grounds that he did not understand theeffect of the bond, and there was insufficient evidence before the Court to prove thecharges.Background[3] Mr Gardner was charged with intimidating the complainant by threatening toinjure,2 and assaulting the complainant.3 Both offences are alleged to have occurredon 2 September 2019. A summary of facts relating to this offending has not been madeavailable to either the District Court or this Court.[4] Mr Gardner was also charged with two charges of failing to answerDistrict Court bail on 9 October 2001 and 9 December 2019.[5] All charges were set down for a defended hearing on 2 June 2020. At thecommencement of the hearing, discussions between counsel and the Court resulted inMr Gardner entering into the bond. There was no formal application pursuant tos 366 of the CPA. All four charges were dismissed.Principles on appeal[6] Section 312 of the CPA provides that a person who is ordered to enter into abond to keep the peace may appeal that decision to the High Court. An appealproceeds as if it were an appeal against a costs order under subpart 6 of the CPA.41 Police v Gardiner [2020] NZDC 11208.2 Summary Offences Act 1981, s 21(1)(a).3 Section 9.4 Criminal Procedure Act 2011, s 312(3). See also s 271.[7] On appeal, the Court may confirm, vary, or set aside the decision, or make anyother order considered appropriate.5District Court decision[8] The decision consists of one paragraph and reads:Mr Gardiner, the four charges against you are now dismissed on the basis thatyou have signed the bond for keeping the peace under s 367 CriminalProcedure Act 2011, so that is the end of the matter.[9] The legal discussion before the Judge shows that Sergeant Patton, for thePolice, considered the gravity of the offending to be low and based on family ties.6The Police considered there was no public interest in a judge-alone trial andaccordingly sought to have a bond to keep the peace drafted by the registry.Mr Gardner's counsel indicated that this was an appropriate alternative disputeresolution.[10] Sergeant Patton is recorded as saying that once the bond is drafted the mattercould come before the list court for "the defendant to accept or decline it".7 Heindicated that if Mr Gardner accepted the bond, the police would seek leave towithdraw the charges.[11] The Judge – having engaged in a discussion with both counsel – "directed" thatMr Gardner enter a bond under s 366 of the CPA. Once Mr Gardner had signed thebond, he was recalled before the Judge who dismissed the charges against him.Relevant sections of the CPA[12] Section 366 states:366 Application for order for bond to keep the peaceAny person may apply to the District Court presided over by aDistrict Court Judge for an order requiring any other person to enterinto a bond, either with or without sureties, for keeping the peace, onany of the following grounds:(i) that the applicant has cause to fear that the defendant will—5 Section 274.6 Police v Gardiner DC Christchurch CRI-2019-009-008540, 2 June 2020.7 At 2.(i) do bodily harm to the applicant or his or her wife,husband, civil union partner, or de facto partner or hisor her child or any member of his or her household; or(ii) that the defendant has, to or in the presence of the applicantfor the purpose of annoyance or provocation, or to thecommon annoyance of members of the public,—(i) used provoking or insulting language; or(iii) done any offensive act; or(iii) that the defendant has threatened to do, or to procure someother person to do, any act that, if done, would constitute anoffence under any of the following provisions ofthe Crimes Act 1961:(i) section 188(1) (which relates to wounding with intentto do grievous bodily harm):(ii) section 189(2) (which relates to injuring with intent toinjure):(iii) section 196 (which relates to common assault):(iv) section 267 (which relates to arson):(v) section 269 (which relates to intentional damage):[13] The relevant parts of s 367 state:367 Making of order for bond(1) On the hearing of an application under section 366, the courtmay order the defendant to enter into a bond if it considersthat there are good grounds to do so.(4) No order may be made under this section, unless—(a) in the case of an application under section 366(a), thecourt is satisfied that the applicant has just cause forhis or her fear; or(b) in the case of an application under section 366(b), thecourt is of the opinion that the conduct complained ofis likely to be repeated and may tend to provoke abreach of the peace; or(c) in the case of an application under section 366(c), thecourt is satisfied that there is just cause for fear thatthe defendant will, if not prevented, carry the threatsinto execution.[14] In his initial submissions, Mr McClenaghan for the Police argued that the Judgehad before him: a signed formal statement by the complainant which outlined thethreat and the assault; and a signed notebook statement of Constable Gillon detailingan admission by Mr Gardner of the threat towards the complainant. Upon furtherenquiry by this Court, Mr McClenaghan confirmed that the Judge did not have thesedocuments before him.[15] In making an order for a bond, the Court must be satisfied that the complainanthas just cause for their fear that the defendant will do bodily harm to the them,8 or inthe case of threatening language that the conduct complained of may tend to berepeated and may tend to provoke a breach of the peace.9[16] Mr McClenaghan submitted that the District Court Judge had jurisdiction toimpose the order on the grounds that the complainant had cause to fear bodily harmby Mr Gardner,10 Mr Gardner used provoking or insulting language in the presence ofthe complainant,11 or Mr Gardner physically grabbed and/or threatened to assault thecomplainant.12[17] The Judge did not have the summary of facts, the complainant's statement orthe attending constable's notebook entries. On this basis the Judge could not haveaddressed the underlying facts of the matter. It appears the Judge accepted counsel'sunanimous presentation of the bond as an alternative dispute resolution mechanism,without enquiring as to the actual basis for the bond and whether or not he was satisfiedthat the complainant had just cause for his fear that the defendant would do bodilyharm to him or use threatening language.[18] The Judge gave no reasons for making the order. Nor did he make any furtherenquiries as to the basis of the order.8 Criminal Procedure Act, s 367(4)(a).9 Section 367(4)(b).10 Section 366(a)(i).11 Section 366(b)(i).12 Section 366(c)(iii).[19] There is no evidence (including in the court record) to enable me to determinewhether the Judge was aware of the existence of evidence which would satisfy therequirements of s 367(4)(a) of the CPA.[20] The approach taken by the Judge is understandable in the highly transactional,high volume environment of a busy District Court. Particularly where Mr Gardnerwas represented by counsel, both counsel supported the bond, and Mr Gardnerostensibly consented by signing the bond.[21] It might be argued signing and therefore entering into the bond was an act initself which could have satisfied the requirement of s 367(4) of the CPA, but it issimply unknown what factors the judge considered in the exercise of his discretion.[22] I have every sympathy for the Judge in circumstances where he was attemptingto do justice to a case and give effect to the considered and agreed position of both theprosecution and defendant but given the lack of evidence and reasoning, I cannot besatisfied that the provisions of s 367(4) CPA were in fact satisfied.Result[23] I allow the appeal and dismiss the bond.Doogue J