High Court ruling allows Registrars to hear unopposed family violence bail applications
Tue 20 Apr 2021
A High Court decision has quashed the previous direction that only judicial officers should consider bail applications involving family violence charges.
High Court Justice Rachel Dunningham considered whether it was within the scope of the District Court Act 2016 to direct that only judicial officers should hear bail applications involving family violence charges, and not Registrars.
In her March 2021 ruling, Justice Dunningham found that the "The directions made by the District Court requiring any decision on bail applications on family violence charges to be made by judicial officers only, are unlawful." As a consequence of the finding, she quashed the directions.
She found that the District Court "...did not have the power to prohibit Registrars from dealing with applications on family violence charges." Justice Dunningham noted:
" The power to make directions and set standards for best practice and procedure in the District Court must be exercised consistently with the relevant statutes which govern the practice and procedure of that Court. Through the provisions of the District Court Act, the Bail Act and the Criminal Procedure Act, Registrars have authority to make decisions on family violence bail applications where the prosecution does not oppose. That authority cannot be removed by a direction or decision made under s 24(3)(i)."
Section 24(3)(i) from the District Court Act 2016 allows the Chief District Court Judge to "make directions and set standards for best practice and procedure in the court."
Judge Walker provided an affidavit for the High Court that outlined how the District Court developed the current process. In 2014 the Chief District Court Judge at the time gave Judge Walker the responsibility for leading the District Court response to family violence. During that work Judge Walker became aware of a man who had been convicted of murdering his wife while on bail in relation to a family violence charge. The man had been granted bail by a Justice of the Peace, and bail was renewed by a Judge when the man appeared on a breach of bail. In both situations, police had not opposed bail. Because police had not opposed bail, the Court had not received information about the alleged facts, the defendant’s history, or the victim’s circumstances. Judge Walker also became aware that Registrars were routinely granting bail in family violence cases when unopposed with little information about the case.
As a result, Judge Walker developed a minimum list of information that should be considered in decisions of bail on family violence charges. From this work, the Family Violence Bail Report (FVBR) was developed and piloted. As the pilot developed, guidance indicated that Registrars should not deal with family violence bail applications.
In Justice Dunningham's ruling, she noted that Judge Walker emphasised victim safety as the driver for the FVBR pilot. She noted that "He [Judge Walker] says that experience has shown that the greatest level of unidentified risk lies in the unopposed bail applications when information is lacking."
She went on to quote Judge Walker regarding the reasons that Registrars should not handle family violence bail decisions:
"Registrars have not had the education in family violence bail risk assessment, and it has always been the position of the Chief District Court Judge and myself, when the process was developed, that while Registrars have the statutory power to grant unopposed bail in family violence cases, the safety of complainants and victims dictated that they ought not to do that work. This has been communicated to all participants in the Courts where the process has been established as a key part. Our concern was to ensure that the power could be safely exercised."
While Justice Dunningham found the direction unlawful, she also noted:
" That is not to ignore the concerns of the District Court judiciary. Clearly there were good reasons for requiring bail applications to be based on full information, which the FVBR now provides to the decision-maker. There was also a need to provide education to those making decisions on such matters so they were alert to relevant risk factors identified in the FVBR. That said, I consider the District Court had other options to address the concerns they had."
In her ruling, Justice Dunningham also considered whether the directions were unreasonable. She found that "Indeed, but for the illegality I have identified above, they are manifestly reasonable for the reasons set out in Judge Walker’s affidavit."
As a result of the ruling, current Chief District Court Judge Taumaunu has told media outlet Stuff:
"As a result, this week I advised all District Court Judges and the Ministry of Justice that the previous best practice directions issued by or on behalf of my office, requiring registrars to refer those cases to judges for decisions, are revoked pending further direction from my office.”
Stuff media has also reported that Judge Taumaunu said the FVBR would continue to be rolled out nationwide and should be completed by the end of April.
Update: In a June 2021 decision, the Court of Appeal set aside this High Court judgment ( NZCA 353). The Court of Appeal concluded that the direction made by the District Court requiring any decision on bail applications on family violence charges to be made by judicial officers was legal.
Additional background and new research
The Family Violence Death Review Committee (FVDRC) recommended in their fourth report (2014) that training and detailed information be provided to judges to support decision-making in family violence cases. The Committee recommended:
"The Ministry of Justice, in partnership with New Zealand Police, strengthen the criminal and appellate court's ability to respond effectively to family violence charges by facilitating the provision of comprehensive information to judges to aid safe and robust decision-making. This includes the provision of:
-criminal conviction histories, which clearly identify family violence offending, as well as who the victim(s) are - one intimate partner or multiple, and/or related children
-IPV [intimate partner violence] risk information (regarding assault and lethality) and risk management analyses
-information for bail applications that documents family violence offending histories and identifies harmful patterns of relating, including the number of protection orders against the defendant."
New research from the FVDRC also highlights the role of family violence expert evidence and argues for the need for adequately trained and experienced specialists to provide that evidence within the criminal jurisdiction of the District Court and High Court in Aotearoa New Zealand. Researchers Mark Henaghan, Jacqueline Short & Pauline Gulliver conclude that:
"Without there being a contemporary, comprehensive understanding of family violence amongst judges, police prosecution and defence lawyers, expert evidence from trained and experienced specialists is required. To enhance the educative role of family violence expert evidence, such evidence should be called by the court in criminal cases considering offending by one family member against another. Consideration should be given to an inquisitorial approach to family violence expert evidence."