Reduction of bail sureties quashed

Press, 24 June 1981, Page 4

Reduction of bail sureties quashed

PA Wellington The Court of Appeal has set aside a High Court decision reducing the amount of money Shirley Theresa Doreen Fulcher and her sister had to pay when they acted as sureties for a man who absconded from bail. Mrs Fulcher is the estranged wife of a New Zealander. Peter Fulcher, who is in custody in Sydney pending trial on charges relating to the distribution of heroin. Mrs Fulcher’s sister is Helen Valda Murdoch.

On January 8, 1980, the pair acted as sureties for Brian Ivan Agnew, who appeared in the Magistrate's Court at Auckland . charged with burglary and the possession of explosives, and' was granted $lO,OOO bail with two similar sureties.

Agnew absconded to Australia while on bail. He was brought back at the expense of the Crown and his bond was estreated. Proceedings for estreat were also taken against the sureties. After a hearing, Mr J. R. Callander, then a Stipendiary Magistrate, ordered that the bond be estreated to the sum of $7OOO in each case.

It was because he accepted that estreat in full would present grave financial difficulties to the two women that he remitted $3OOO for each. The sureties then appealed to the Auckland High Court, and Mr Justide Prichard reduced the amount of the estreat to $2OOO.

The Crown appealed against this and the Court of Appeal has now set aside the decision. This action restores the magistrate's original decision.

In his ' Court of Appeal judgment, Mr Justice Cooke says that the remission of $3OOO for each surety which was granted by the magistrate was probably the most that could reasonably have been expected.

However, to what extent the relevant! questions — whether Mrs Fulcher and Mrs Murdoch had lacked due diligence in making sure that Agnew answered his bail, and whether they had misled the deputy registrar about their assets when they had signed the bond — had been argued in the High Court appeal was not clear. It wag', possible that the judge did not have the ad-

vantage of a full argument. ’“He appears not to have taken into Account the ele ; ment of initial misrepresentation of funds, and to have given minimal or, no weight to the attitude of virtual indifference to their obligations displayed by both the sureties,” said his Honour.

“It is difficult to avoid the conclusion that to remit fourfifths of the bond' of each surety was to misconceive the scope and purpose of this particular statutory discretion. It must be held that there was an error of law,” said his Honour. Giving evidence about her assets in the initial estreat proceedings before the Magistrate, Mrs Fulcher said of her husband. Peter Fulcher, that in 1979 he had arranged for her to mortgage her house for $26,500, and that she had not received any of the proceeds. He had then “taken off from the matrimonial home” and the moneylender was demanding more than $2700. Mrs Fulcher said that she was earning $3O a week (she thought); had very few assets, an.d was receiving no support from her husband. She had two children.