R V BAGBY HC AK CRI 2006-092-12705 [2009] NZHC 127 (13 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                         CRI 2006-092-12705



                                      THE QUEEN



                                             v



                          
  SCOTT CHARLES BAGBY
                                   Respondent



Hearing:       13 February 2009

Appearances: Mr Glubb for
Crown
             Mr Tait for Mr Bagby
             Appearances by Ms Dhyrberg & Mr Brosnahan for Jeffrey Key (an
             interested
party)

Judgment:      13 February 2009


                        JUDGMENT OF WINKELMANN J




Crown Solicitor, Auckland
S Tait,
Barrister, Manukau
M Dyhrberg, Barrister, Auckland




R V BAGBY HC AK CRI 2006-092-12705 13 February 2009

[1]     The background
to this originating application is that on 12 February 2009 I
issued a warrant for Mr Bagby's arrest pursuant to s 351 of the Crimes
Act 1961. I
did so on the basis that there was evidence before me that a copy of a notice under
s 181 of the Summary Proceedings
Act 1957 had been served upon Mr Bagby
requiring him to attend at the High Court at 9.30 am on 9 February 2009. He had
failed to
attend at that time. Mr Bagby is required as a witness evidence for the
Crown at the trial of Jeffrey Key on a count of murder.


[2]     The defence are also keen to have him give evidence and that is perhaps
behind Ms Dhyrberg and Mr Brosnahan's appearance.


[3]     This is the second trial of Mr Key, the earlier trial having been aborted
because of additional information obtained through
the course of trial which the
police considered required further investigation. As a consequence of that additional
information Mr
Bagby was subsequently charged with the murder of Riki Mafi, the
same murder with which Mr Key currently stands charged. Ultimately,
the charges
against Mr Bagby and others did not proceed to depositions hearing as the Crown
had insufficient admissible evidence
against those individuals.


[4]     At the earlier hearing of the charge against Mr Key a summons had also been
issued for Mr Bagby
to attend and he had again failed to attend on that occasion.
Keane J issued a warrant for his arrest. Ultimately he was brought
before the Court
(after the end of the trial) and was dealt with but not convicted in respect of the
failure to attend.


[5]   
 Mr Tait for Mr Bagby explains that he failed to attend on the earlier occasion
because he understood that he was a suspect in the
murder and he was concerned not
to give evidence in those circumstances.      On this occasion Mr Bagby has not
attended because
he has no means of travelling to the High Court.            He is a
disqualified driver and has no money to pay for public transport.


[6]     In response to the Crown application Mr Tait says firstly, that the summons
was not properly served on Mr Bagby because
a travel allowance was not paid to

him. His alternative argument is that Mr Bagby should now be released on bail and
that he will
attend to give evidence when required to next week, that the court can be
confident he will regard High Court bail more seriously
than he has regarded it in the
procedures he has been subjected to to date.


[7]    The basis of Mr Tait's argument that Mr Bagby
has not been properly served
with the summons is s 20(3) of the Summary Proceedings Act 1957 which provides

       No person who
is required under a summons issued under subsection (1) of
       this section to travel more than [15 kilometres] to attend the
hearing shall be
       bound to attend, unless expenses in accordance with the scale prescribed by
       regulations made under
this Act are tendered to him.

[8]    That section has no application to this situation. The summons in this case
was issued under
s 181 of the Summary Proceedings Act which has no requirement
for the payment of witnesses expenses. Section 181 applies to summons
issued at
the end of depositions hearings. Section 181 summonses are deemed to have the
effect of a summons issued to a witness out of the High Court or District Court. In
the context of the section
it is plain that this summons is intended to have the status
of a summons issued by the High Court and there is no requirement that
has been
brought to my attention for the payment of witnesses expenses in those
circumstances.


[9]    The summons was then properly
issued. That being the case, Mr Bagby has
ignored a properly served summons and I am satisfied is in contempt of court. It is
important
that Mr Bagby be available when required to give evidence in this trial.
As I have said, it is a re-trial and the subject of the
charge occurred now more than
two years ago. It is apparent that the longer the time that elapses between trial and
the events the
subject of the trial the greater the chance there is of loss of memory on
the part of eye witnesses. I am therefore anxious to avoid
any possibility of a retrial
and as Mr Bagby's evidence is an important part of his trial, I consider it vitally
important that he
be available to give evidence. That outcome cannot be assured on
the basis that he is granted bail.


[10]   Mr Bagby's record is
before me and he has failed to answer bail on numerous
occasions. Even though that is District Court bail I have no confidence that
he will

answer High Court bail. He has already ignored two summonses which have the
effect of High Court orders. I propose to remand
him in custody to ensure his
attendance to give evidence.


[11]   I have raised with counsel the basis of my jurisdiction to take
this approach.
Mr Glubb refers me to s 20 of the Summary Proceedings Act 1957 which gives
District Court Judges jurisdiction to commit
to prison any person arrested pursuant
to a warrant for non-attendance pursuant to a summons. That section applies only to
the summary
jurisdiction, but Mr Glubb argues that the High Court must have
inherent jurisdiction to regulate its own procedures. I accept that
that is so in
circumstances where the summonsed person is in contempt of a court order.


[12]   I am therefore satisfied that he
should be remanded in custody to the Wiri
Station Road (Manukau) police jail for five days. The Crown initially sought a
remand in
custody for seven days, but having discussed matters with counsel it
seems that his evidence will certainly be able to be taken within
five days. If there is
any need to amend that because of some difficulty with the trial, then Mr Bagby can
be brought before me at
that time.


[13]   Mr Bagby is convicted of the offence of failing to attend the High Court at
the time and place appointed under
s 351 of the Crimes Act. I do not intend to
impose any penalty in that regard however, but simply require that he be remanded
in
custody at the Wiri Station Road (Manukau) police jail until an order to produce is
issued for the taking of his evidence. If that
does not occur within five days of the
date of these orders then he is to be brought back before me so that consideration can
be
given to his status.


[14]   Mr Tait has raised the issue of the provision of independent legal advice to
Mr Bagby. I agree with
his assessment that it is important that Mr Bagby have the
opportunity of that advice prior to giving evidence. Mr Glubb has undertaken
that
proper access to Mr Bagby for Mr Tait will be provided to facilitate the giving and
taking of that advice. If there is any difficulty
in that regard then that is something
that Mr Tait should bring back before me as a matter of urgency. Mr Glubb has also

undertaken
to communicate to police a requirement that Mr Bagby be provided with
his own cell at the Wiri Station Road (Manukau) police jail.




                                                    Winkelmann J