Judging the judges: Ruling legally sound - law expert

Professor Brookbanks said Justice Mark Cooper's decision on Curran was legally the right one. Photo / Stuart Monro

The decision to give Michael Curran bail was legally sound, says University of Auckland criminal law expert Warren Brookbanks.

Professor Brookbanks said all bail decisions had to be determined by the Bail Act 2000 and not solely on what the judge was told in court. "The Bail Act specifies that a defendant must be released on reasonable terms and conditions unless the court is satisfied that there is just cause for continued detention," he said.

The judge must consider three particular risk factors: that the defendant might fail to appear in court on their next scheduled date; that they might interfere with witnesses or evidence; or that they might reoffend while on bail.

"The Bail Act also gives other factors to consider on a case-by-case basis," Professor Brookbanks said.

Those factors included the nature of the offending; the strength of police evidence and the likelihood of a conviction; the seriousness of the punishment to which the defendant was liable; the defendant's character, past behaviour and any proven criminal behaviour; whether the defendant had a history of offending while on bail or breaching court or bail conditions and orders; the length of time before the defendant got to trial and the possibility of prejudice to the preparation of the defence if the defendant was remanded in custody.

Professor Brookbanks said Justice Mark Cooper's decision on Curran was legally the right one.

He said the acceptance there was a strong case was just one of the available considerations to be satisfied before an accused person was remanded in custody.

"The judge was also mindful of the fact that if Curran were to continue to be remanded in custody he would have spent over a year in custody before having the ability to answer the charge against him at trial."

Professor Brookbanks said Justice Cooper's decision emphasised the need for a "proper evidential foundation" before it could be concluded that there was a just cause for Curran's continued detention.

In the end, it was not enough that there was a serious charge and a strong case to support it.

There was no suggestion Curran would fail to appear in court or "any evidence that the defendant posed a significant risk of offending while on bail".

Professor Brookbanks said Justice Cooper's final analysis was on the risk that Curran would interfere with witnesses. Evidence supporting the claim was "short on detail and specifics".

"Nor was there any evidence of a history of crimes of violence or association with violent gangs that might have verified the concern about witness safety. Although Justice Cooper found the decision to be a finely balanced one, His Honour was not satisfied that the Crown had made out a case establishing that there was just cause for continued detention," Professor Brookbanks said.

"In my view it cannot be said that the judge's bail decision was wrong."