A v Police HC Auckland CRI-2007-404-307

[2007] NZHC 1141

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-404-307

CRI-2007-404-309

A

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         26 October 2007

Appearances: P F Fuiava for the Appellant

A M McClintock for the Crown

Judgment:      26 October 2007

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Duffy J)

A V POLICE HC AK CRI-2007-404-307  26 October 2007

[1]        A    has  appealed  against  a  decision  of  Judge  Connell  in  the District Court at Manukau, dated 4 October 2007, refusing him bail.   Mr A   is charged with assault with a weapon under s 202C of the Crimes Act 1961.  At the time of the alleged assault with a weapon, Mr A   was already on bail facing charges of male assaults female under s 194(b) of the Crimes Act and resisting Police under s 28(a) of the Summary Offences Act 1981.

[2]      It was a condition of Mr A  ’s bail on the earlier charges that he not visit the address of the complainant.  The current charge arose from an alleged incident at the address  of  the  complainant.    Mr  A    conceded  that  he  had  breached  the  bail condition by going to the prohibited address.

[3]      Bail was refused in the District Court on the sole ground there was a real and significant risk that Mr A   might offend while on bail.  He was not found as being at risk of failing to appear in Court or of interfering with witnesses.

[4]      A challenge on appeal to a bail decision is an appeal against the exercise of a discretion.  R v Keefe and Rymer CA162/04 22 July 2004 confirms that it is for an appellant to demonstrate that the Judge at first instance:

a)        made an error of principle, or

b)       failed to take into account all relevant matters, or c)    took into account irrelevant matters, or

d)       was plainly wrong.

[5]      In written submissions dated 23 October 2007, Mr A   contends the Judge was wrong.  He submits:

a)       First, the Judge placed too much weight on the original charge of male assaults  female  to  the  extent  that  the  Judge  made  the  mistake  in finding Mr A   had consumed alcohol for the later charge of assault with a weapon.

b)Secondly, the Judge failed to mention that Mr A   had no convictions for offending while on bail, even though the submissions to the Judge invited him to take that fact into account when assessing whether or not there was a real and significant risk of offending on bail.

[6]      In Court today, Mr Fuiava has acknowledged that there is no express mistake in the judgment in relation to consuming alcohol.

[7]      Ms McClintock for the Crown submitted that it was clear from the judgment that  the  Judge’s  references  to  the  consumption  of  alcohol  related  to  the  earlier charges and not the second charge on which bail was denied.

[8]      In relation to the second ground of the appeal, Ms McClintock submitted that while it was correct that the Judge did not express in his judgment any reference to Mr A   not having re-offended while on bail, it was clear from the judgment that the Judge had looked at all the matters – being the consumption of alcohol, the breach of bail conditions and Mr A  ’s record of anger – and concluded that there was a real and significant risk of re-offending.

[9]      The question of how much weight a decision-maker gives to a relevant consideration is a matter for the decision-maker.  It is only when the weighting of relevant factors is so unbalanced that it renders a decision unreasonable that an appellate Court will interfere.  Our reading of the judgment is that the Judge only considered alcohol to be a factor in the earlier alleged offending.  The fact that the Judge drew together over-consumption of alcohol on one occasion with the breach of a bail condition on another and a propensity to violence, which was seen as common to both occasions, seems to us to be an approach that was factually correct.

[10]     In this case, the circumstances of the earlier charges have particular relevance to the later charge because the later charge arose during an admitted breach of a bail condition imposed in respect of the earlier charge.  There is nothing in the judgment which causes us to conclude that the weighting the Judge gave to the circumstances of the original offending was so excessive that it rendered his decision unreasonable. Furthermore, the Judge specifically took account of the changes brought about by the

Bail Amendment Act 2007. That Act requires a Judge to consider if there is just cause for continued detention or, to put the matter the way it was done in R v Kahui HC AK CRI 2007-092-14990 2 October 2007 at [38], whether any continued detention would be unjust.   That decision requires consideration of the matters in s 8(1) and the discretionary considerations in s 8(2) of the Act.  The Judge did all of this.

[11]     The  recent  amendments  to  the  Bail  Act  require  that  a  breach  of  bail conditions may only be taken into account so far as it is relevant to whether there are real and significant risks of flight, interference with witnesses or offending while on bail.  Here the breach of a bail condition arose in the context of alleged re-offending, which has led to a new charge being laid against was Mr A  .

[12]     As was recognised in R v Kahui, Parliament has directed the Court to ensure that there is a proper nexus between the terms breached and the reasons for bail being denied.   The Judge has correctly identified a proper nexus between the bail term breached and the risk of re-offending in this case.  For this reason we consider it was open to the Judge to take into account the circumstances that had led to the earlier charges to the extent that he did.   Consequently, the first ground of appeal fails.

[13]     On the second ground, it is correct that the judgment makes no reference to Mr A   having no convictions for offending on bail.  The commentary in Adams on Criminal Law says that in assessing the risk of re-offending while on bail, regard will be had to the defendant’s criminal history, if any, including previous relevant breaches of bail.  In this case the Judge’s assessment of the risk of re-offending was influenced by Mr A  ’s breach of a bail condition in relation to the earlier charge. At [9] of the judgment the Judge states his concern for Mr A  ’s “complete disregard of that bail condition”.   We do not think the lack of comment on the absence of convictions for re-offending on bail vitiates the Judge’s conclusion.  The extent to which he had to take that matter into account was open to him, and it was not something he was required specifically to address in the bail decision.  Where there is a close nexus between the breach of bail condition and the alleged commission of an offence which has led to a new charge, that is sufficient to provide a Judge with

just cause to conclude there is a real and significant risk of further offending if bail is granted.  Consequently the second ground of appeal fails.

[14]     The appeal is dismissed.

Duffy J

Solicitors:    P F Fuiava P O Box 21193 Henderson for the Appellant

Meredith Connell P O Box 2213 Auckland for the Respondent