The District Court at Christchurch v Mcdonald
Jurisdiction | New Zealand |
Judge | Kós P |
Judgment Date | 29 July 2021 |
Neutral Citation | [2021] NZCA 353 |
Docket Number | CA192/2021 |
Court | Court of Appeal |
Kós P, Miller and Cooper JJ
CA192/2021
CA321/2021
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Judicial Review — appeal against a High Court decision which held directions made by the Chief District Court Judge relating to Family Violence Bail Reports were unlawful — allocation by judicial direction of responsibilities between registrars and judges — inherent powers of the Courts to regulate its own procedure — judicial review — illegality
V L Hardy, D L Harris and C P C Wrightson for District Court
A J Bailey and R J T George for Mr McDonald
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A The appeal by the District Court in CA192/2021 is allowed.
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B The declaration made at [50] of the High Court judgment is set aside.
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C The appeal as to costs by Mr McDonald in CA321/2021 is dismissed.
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D There are no orders for costs.
(Given by Kós P)
By statute, District Court registrars may grant or vary bail where the prosecutor agrees. Registrars frequently deal with unopposed bail applications.
But two directions were then made by judges to whom particular responsibilities had been delegated by the Chief District Court Judge. The first direction precluded registrars granting bail to any defendant charged with a family violence offence. The second precluded registrars in the Christchurch district considering bail variation applications for any defendant charged with a family violence offence.
The effect of these directions was not to deny bail in such circumstances, but sometimes to delay it — such applications having instead to be listed before a judge.
Dunningham J set those directions aside on an application for judicial review by Mr McDonald. 1 Mr McDonald's bail application, to which the police consented, had to be referred to a judge. Although bail was granted, Mr McDonald's release was delayed at least 30 minutes; he was represented by a duty solicitor rather than his own lawyer (who was no longer available) and the Judge imposed an additional reporting condition which Mr McDonald found inconvenient. 2 Dunningham J refused to award Mr McDonald costs in a second, separate judgment. 3
The District Court at Christchurch appeals the former decision, Mr McDonald the latter.
We consider the Judge erred in setting the directions aside. We now explain why.
In 2014, the then-Chief Judge gave Judge Walker responsibility for leading the District Court's response to family violence. 4 As part of his work, Judge Walker became aware registrars in many courts routinely granted unopposed bail in family violence cases with little information before them apart from the charging document. Judge Walker states in an affidavit:
4. I have worked closely with the Police in the development of a risk assessment tool for family violence cases, the interface between Integrated Safety Response teams and the courts and the complainant video evidence project, and the issues surrounding electronically monitored bail in family violence cases.
5. In 2014, in the context of this work, I became aware that a person convicted of murder of his wife was at the time of the offence on bail in relation to a family violence charge where his wife was the alleged victim. Bail had been granted by a Justice of the Peace and renewed by a Judge when he appeared on a breach of that bail. On each of those appearances bail had not been opposed by Police.
6. I carried out a detailed review of that case to see what lessons could be learned. It became apparent that because bail had not been opposed, no information about the alleged facts, the defendant's history, or the victim's circumstances were placed before the court. It also became apparent that this was not an unusual situation. I also became aware that Registrars in many courts were routinely granting bail in family violence cases when bail was unopposed and with little or any information other than the charging document.
7. It also became clear that a great deal of information had been available within the Police system in relation to the offender in that case, including a previous family violence conviction, Police call outs, suicidal ideation, and the victim approaching Women's Refuge for help. Information highly relevant to the assessment of risk which the defendant posed was available to the system, but not available in court.
A system for collecting and reporting a wider range of information in relation to applications for bail on family violence charges was developed. That information includes the charging documents, summary of alleged facts, previous criminal history, previous bail history, and details of the following: all police family violence call-outs
involving the applicant, all protection orders issued against the applicant, all breaches thereof, all police safety orders issued and all breaches thereofThese reports are called Family Violence Bail Reports (FVBRs). In 2015, FVBRs were trialled in the District Courts at Porirua and Christchurch. As part of the FVBR methodology, in 2015 Judge Walker decided all family violence bail applications should be decided by judges rather than registrars. At least in part, that decision was made on the basis that registrars had not had education in family violence bail risk assessment. A direction to that effect was communicated to registry staff. It was also included in guidance material for registry staff prepared by the Ministry of Justice. That was the first direction. Since 2020, FVBRs have been adopted in all District Courts, and the direction applies in all cases. The first direction therefore has national effect.
Subsequently a question arose whether registry staff should be dealing with unopposed bail variation applications on family violence charges. In 2018 the Executive Judge at Christchurch, Judge O'Driscoll, directed that such applications should only be determined by a judicial officer. That was the second direction. It has effect only in the Christchurch district.
Section 20 of the District Court Act 2016 provides:
20 Exercise of jurisdiction
The jurisdiction of the court may be exercised by—
(a) a Judge; or
(b) if authorised by this Act or any other Act or by the rules, a Registrar or any person authorised to carry out the functions of a Registrar.
Section 20(b) applies potentially because provisions in both the Criminal Procedure Act 2011 and the Bail Act 2000 permit registrars, in limited circumstances, to make decisions on bail.
Section 168(1) of the Criminal Procedure Act provides that a judicial officer or registrar, in accordance with any applicable provisions of the Bail Act, may allow the defendant to go at large, grant the defendant bail under that Act or, if the defendant is liable on conviction to a sentence of imprisonment or if the defendant has been arrested, remand the defendant in custody. 5
Section 27(1) of the Bail Act provides that a judicial officer may grant a defendant bail under s 168, and by s 27(2), a registrar may exercise the power to grant bail “if the prosecutor agrees”. Section 33(5) likewise enables registrars to exercise the power to make orders varying or revoking any condition of bail or substituting or imposing any other condition of bail “if … the prosecutor agrees”. In addition, s 30AAA of the Bail Act (which was inserted by s 11 of the Family Violence (Amendments) Act 2018) gives powers to impose conditions on bail to any judicial officer or registrar who grants bail to the extent necessary to protect the victim of the alleged offence and any person residing with or in a family relationship with the victim. Bail applications for persons charged with serious offending (including sexual violation, homicide related charges and wounding or injuring with intent) must be dealt with by a judge (in the District or High Court) if the defendant has a prior such conviction. 6
Finally, s 24(3) of the District Court Act provides:
(3) The Chief District Court Judge must ensure the orderly and efficient conduct of the court's business and, for that purpose, may, among other things,—
(a) determine the sessions of the court; and
(b) assign Judges to those sessions; and
(c) assign Judges to particular divisions or jurisdictions; and
(d) assign Judges to the hearing of cases and other duties; and
(e) determine the places and schedules of sessions for individual Judges (including varying the places and schedules of sessions for Judges from time to time); and
(f) manage the workload of individual Judges; and
(g) delegate administrative duties to individual Judges; and
(h) oversee and promote the professional development, continuing education, and training of Judges; and
(i) make directions and set standards for best practice and procedure in the court.
It should however be borne in mind that judicial powers of direction are not necessarily to be found in statutory provisions alone. We return to this point at [27] below.
The Judge looked first at how the directions were made, and whether they were authorised or endorsed by the Chief Judge. The Judge considered the evidence “was lacking” on both points. 7 The Chief Judge had requested Judge Walker review the Court's practices with respect to family violence. The evidence did not however show he was delegated power to make decisions under s 24 of the District Court Act. Nor did it show how the decision to remove responsibility for determining unopposed bail applications for family violence charges from registrars was made. 8
The Judge found the link to s 24 was more tenuous still in relation to the second direction. This was made...
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