BLOMFIELD v NEW ZEALAND POLICE [2017] NZHC 586

BLOMFIELD v NEW ZEALAND POLICE [2017] NZHC 586 [28 March 2017]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYCRI-2017-425-4[2017] NZHC 586BETWEEN TENIKA BLOMFIELDAppellantAND NEW ZEALAND POLICERespondentHearing: 27 March 2017Appearances: S G Vidal for AppellantM A Mika for RespondentJudgment: 28 March 2017JUDGMENT OF NICHOLAS DAVIDSON J (CERTIFICATION OF BAIL BREACH)Introduction[1] The appellant, Ms Blomfield, was bailed on charges of burglary and theft, to which she has since pleaded guilty.[2] The police allege that she had breached bail which required her to live with her father at an Invercargill address. Her father told Ms Blomfield to leave, so she went to her grandmother's address and remained there. Her bail terms included a 24 hour curfew and she complied with that.[3] Ms Blomfield was forced to leave the bail address on Friday 13 January 2017 and she took no steps to advise the police of her predicament. She contacted counsel when she was told that the police were looking for her. On Monday 16 January 2017she spoke with someone in Ms Vidal's office, and was told she should report to thecourt when it sat on 17 January, which she did. It seems that she was not aware that Ms Vidal has an office in Invercargill and she otherwise waited to advise her counseluntil 16 January, being the beginning of the working week. She was taken into custody on 17 January 2017 and was asked why she had not been at the bailed address and gave the explanation recorded here.[4] Before the District Court Judge, Ms Blomfield opposed certification of the alleged bail breach, technically non compliance with a condition of bail, as she did not accept her actions amounted to breach. Her grandmother was in Court to verify the circumstances in which she came to her home, where she remained.[5] The Judge readmitted Ms Blomfield to bail on the same conditions but changed the address where she is to reside. Then the Judge recorded that the breach was "certified".[6] The Judge rejected the submission that the breach of bail should not be"certified" because she considered the appellant was in breach and she should haveresponded to the fact she could not live at the bail address, before her appearance in court. The Judge said Ms Blomfield needed to comply with the bail conditions and that she knew what they were, and she did not accept that failure to comply was through inadvertence or change of circumstances.Grounds of appeal[7] Ms Vidal says the circumstances did not warrant the breach being "recorded" in the Court file, as opposed to "certification". The effect is different.[8] The non-performance of a condition of bail requires a stepped judicial response.[9] The Bail Act 2000 ("the Act") provides: (emphasis added)39 Non-performance of condition of bail may be certified and recorded(1) If a defendant who has been released on bail at any time fails to comply with any condition of bail, a judicial officer may certify on the 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 the absence of proof to the contrary, sufficient evidence for the purposes of sections 24 and 38 that the defendant has failed to comply with the condition of the notice of bail or bail bond specified in the certificate.(3) In addition to the certification described in subsection (1), if a defendant who has been released on bail at any time fails to comply with any condition of bail, without reasonable excuse, a judicial officer must direct the Registrar that the nature of the condition and the non-performance of the condition be entered in the court record kept in accordance with section 184 of the Criminal Procedure Act 2011.(4) Despite subsection (3), the judicial officer may decide not to direct that 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 when considering an application for bail from the defendant on a subsequent occasion.(5) A failure to comply with any condition of bail that is entered in the court record under subsection (3) may be considered in any subsequent application for bail made by that defendant over his or her lifetime.(6) In this section, judicial officer means—(a) any judicial officer, if the defendant was released on bail by the District Court, a Registrar, or a Police employee in relation to a category 1, 2, or 3 offence and the Solicitor-General has not assumed responsibility for the proceedings in accordance with section 187 of the Criminal Procedure Act 2011:(b) a Judge, if any of the matters set out in paragraph (a) do not apply. (emphasis added)[10] Section 52 of the Act reads:52 Appeal against entry by District Court Judge or High Court Judge of non-performance of condition of bail in court record(1) If a District Court Judge or High Court Judge directs under section 39 that the non-performance of a bail condition be entered in the court record, the defendant may, within 20 working days of the direction being made, appeal the direction to the High Court or the Court of Appeal, as the case may require.(2) After considering an appeal under subsection (1), the High Court or the Court of Appeal may order that—(a) the direction stand; or(b) the direction be amended; or(c) the direction be revoked.(3) There is no further right of appeal against a direction to enter the non-performance of a condition of bail in the court record than that given by this section.(4) No direction appealed against under this section is suspended merely because notice of that appeal has been given. (emphasis added)[11] An appeal under s 52 is against the exercise of discretion and the test on appeal has been described as follows:1 unless the appellant can point to the changed circumstances, he must demonstrate that the Judge erred in principle, "or that the Judgefailed to consider all relevant matters or took into account irrelevantmatters, or that the decision was plainly wrong".[12] Ms Vidal accepted a technical breach and that certification was within theJudge's discretion, and did not challenge that. Her concern was whether the breachwas formally directed to be entered on the Court record. It was notSubmissions for Police[13] Mr Mika for the Police accepts Ms Blomfield's explanation and says theJudge implicitly made a finding that the breach, not residing at the bail address, remained the responsibility of the appellant.Discussion[14] The appellant in these circumstances, in my view, carried an obligation to advise the police or her counsel immediately that her bail terms could not be fulfilled, even though no fault of her own.[15] The Judge otherwise did no more than certify breach as s 39(1) of the Act allows. As such, under s 39 of the Act, Her Honour simply exercised a discretion to certify non-performance of a condition to reside at a given address.1 Aspinall v Police HC Wellington CRI-2010-485-70, 21 July 2010 at [6].[16] Section 39(3) of the Act makes it plain that where a breach occurs without reasonable excuse then the judicial officer must direct the Registrar that the nature of the condition and non-performance be entered in the court record under s 184 of the Criminal Procedure Act 2011. However, s 39(4) of the Act carries a rider that notwithstanding s 39(3), a judicial officer may decide not to direct that the failure to comply is entered in the court record if the failure is considered of such a minor nature it does not warrant being taken into account when considering an application for bail by the defendant on a subsequent occasion, over his or her lifetime.[17] The Judge here has not directed that the failure to comply be entered in the court record, while making no reference to ss 39(3) and s 39(4).[18] Although the Judge was not impressed by the breach she had implicitly treated it as minor, with which I agree. To a large degree, the problem was not of Ms Blomfield's making and she did not breach when she was ordered to leave the bail address. She did what she considered right, but it was not enough. She complied with her curfew and went to what she regarded as a substitute bail address, but she should have regularised the position immediately with the police. It should not have required the police to find that she was not at the bail address. When a bailee is unable to meet the conditions of bail for whatever reason, in my view that person carries a responsibility to advise the Police immediately and in particular this relates to the bail address. Only in that regard do I consider that she should carry responsibility for the technical breach of a condition of bail.[19] In short, certification was appropriate. Entry in the court record was not directed, and I agree with that; as this was a sufficiently minor breach.Disposition[20] The appeal is dismissed but with the clarification sought by Ms Vidal that the breach was not entered in the Court record, and should not have been..Nicholas Davidson JSolicitors:Southern Law, InvercargillPreston Russell Law, Invercargill