A v Police HC Auckland CRI 2008-404-180

[2008] NZHC 2420

This case has been anonymized

NOT TO BE PUBLISHED UNTIL FINAL DISPOSITION OF TRIAL

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-000180

UNDER  the Bail Act 2000

IN THE MATTER OF     an appeal against refusal to grant bail

BETWEEN  A

Appellant

ANDPOLICE Respondent

Hearing:         25 July 2008

Appearances: D O'Connor for Appellant

J C Down for Respondent

Judgment:      25 July 2008

JUDGMENT OF COOPER J

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

D O’Connor, PO Box 2283, Shortland Street, Auckland 1005

A V POLICE HC AK CRI 2008-404-000180  25 July 2008

District Court declining him bail.

[2]      He faces two sets  of  proceedings,  one  involving  charges  summarily laid alleging robbery,  being  a party to  robbery and  unlawfully  getting  into  a  motor vehicle, is to be dealt with by a trial in October this year.  The second, concerns a charge of wounding with intent to injure, arising out of events that occurred on the evening of 27 October 2007.

[3]      There has not been a great deal of information put before me which would enable me to assess the strength of the Crown case, but I proceed on the basis that there  is  sufficient  evidence  to  sustain  a  conviction,  at  least  on  the  charge  of wounding with intent to injure.  It was that charge that was before Judge Harvey on

20 June 2008.  The decision that the Judge made is brief and counsel accept that it would have been made in the course of a busy list.

[4]      The judge noted that the appellant had not appeared before the Court when the matter “first got started on 29 February” and that he had earlier breached bail on a previous occasion.   Mr O’Connor had referred to the other set of proceedings which the appellant faces and had explained that there had been some confusion over dates.  The Judge then said briefly that if the appellant could make a mistake once he could do so again and in fact said that he was sure he would.  He then remanded the appellant in custody.

[5]      It appears that at least in part the Judge’s decision may have proceeded on a false premise.   His reference to a failure to appear on 29 February was in fact a mistake.  It was on that day that the current prosecution was commenced.  Because some difficulty had been encountered in finding the appellant to charge him with the offence the police sought that a warrant be issued under s 19 of the Summary Proceedings Act 1957.  That being the way the matter was commenced on that day it was wrong to hold that he had failed to appear on 29 February.  He had not then been served with any process requiring that he be present.

justifying bail being declined.

[7]      This morning Mr Down had referred to a concern that the appellant might offend whilst on bail and he initially submitted that the offending which is the subject of the charges laid summarily had occurred whilst the appellant was on bail in respect of the current matters.  However, he now accepts that that is not the case;

26 March was the date when the appellant first appeared on all matters and the offence date alleged in respect of the charges laid summarily is respectively 5 and 6

March 2008.

[8]      There is no suggestion that the appellant breached any of the conditions of consent applicable whilst he was remanded on bail.   They included a requirement that he report to the police at Otara on Mondays, Wednesdays and Fridays between the hours of 8.00 a.m. and 4.00 p.m.  There were also conditions requiring him to reside at 1 Don Place, Otara and not to associate with his co-accused.

[9]      There was a suggestion in the police opposition to bail form filed for the purposes of today that the address to which the accused was bailed was inappropriate because his alleged co-offender was residing at the same address.  That in fact is not the case, although he does apparently reside in the same street and reasonably close to the appellant’s proposed address.

[10]     There is to be a pre-depositions hearing in respect of the charge of wounding with intent to injure in August.  Counsel refer to the possibility of a trial late next year if the matter is defended.  Possibly the trial date might be even later.

[11]     I am satisfied that bail should be granted in this case and that there is no good cause for the continued detention of the accused in custody.  All relevant risks can, I think, be dealt with by suitable conditions and I propose to grant bail accordingly.

[12]     Bail will be subject to the conditions that the respondent reside at 1 Don

Place, Otara;  that he report to the police at Otara between the hours of 8.00 a.m. and

accused nor attempt to contact any of the Crown witnesses.