David Fisher

David Fisher is a senior reporter for the NZ Herald.

Judging the judges: Christie judge left in dark

Court staff failed to pass on earlier judge's plan to let kidnapper out on bail wearing an electronic bracelet

Akshay Chand. Photo / Paul Estcourt
Akshay Chand. Photo / Paul Estcourt

The judge vilified for freeing Christie Marceau's killer was not given a bail option which had been raised in earlier hearings as a way of keeping her safer.

The option of electronic bail was raised in court before Akshay Chand appeared before Judge David McNaughton, who released him on charges of kidnapping Miss Marceau.

The Weekend Herald has found court staff never passed on another judge's instruction that police prepare to assess suitability for electronic bail.

Frustration over the paper-based court system has been a constant feature in interviews carried out for the Herald's Judging the Judges series.

In an interview for the series, Courts Minister Chester Borrows conceded files went missing and got muddled in the paper-based system. He said a modernisation project would start this year - then said days later that it was delayed for a year because it was so complicated.

The question over paperwork arose in the Herald's search of court files to do with the bail of Akshay Chand, who was already on bail for kidnapping Christie when he attacked and killed her.

The North Shore District Court file showed a bail application by Chand which had been declined by Judge Barbara Morris, who said she wanted police staff to be ready to investigate electronic bail. This involves defendants being fitted with "bracelets" that set off an alarm with police if they leave a designated area.

Typed notes of a September 9, 2011, hearing before Judge Morris show she was "concerned" Chand's home was a "short distance away from the complainant's bail address".

She said she wanted arrangements made for "as rapid as possible electronic bail assessment to an address [that] would need to be well away from the complainant".

She said a psychiatric assessment was also needed and for Chand to begin medication. At that stage, she said bail would be considered again. "I would also ask that these notes be transcribed and sent to the police personnel who are involved in electronic bail considerations."

Courts general manager Tony Fisher said: "Unfortunately, court staff did not follow up Judge Morris' request as they should have, and the transcript was not sent."

However, he said electronic bail required an application from a defence lawyer. In this case, Chand's lawyer never made an application for electronic bail and it did not feature at later hearings.

Waitemata policing development manager Kerry Kay said police had no record of being asked to do an electronic bail assessment. "There is no record of those instructions existing on either the police file or on the [electronic] bail team's records."

Chand was released on October 5, 2011, by Judge McNaughton after being put on anti-depressants and being checked off by mental health staff.

He was scheduled for a mental health check days after his release, which failed to reveal any issues. A month later, he killed Miss Marceau.

He was found not guilty of murder by reason of insanity, with the High Court saying he had "a disease of the mind which was so significant and pervasive that he did not know what he was doing was morally wrong".

Judge McNaughton's bail decision was seized on by the Sensible Sentencing Trust as a mistake, even though legal experts later said he had "no option" other than to release Chand. The trust and Miss Marceau's family started campaigning for "Christie's Law", which sought much tougher bail laws.

Trust spokeswoman Ruth Money, who has led the campaign, said a complaint about Judge McNaughton was with the Judicial Conduct Commissioner. "The problem is a fundamental one and these more minor issues miss the entire point - Chand should never have been granted bail, and Judge David McNaughton is responsible for granting it."

Justice Minister Judith Collins' office confirmed yesterday it was hoped the Bail Amendment Bill would pass about mid-year. The bill makes it harder for adult violent offenders to get bail, although would probably have made no difference to Chand's bail. It will lift bail levels by 0.3 per cent at the cost of $4 million.

- NZ Herald

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