B v Police HC Auckland CRI 2004 404 527

[2005] NZHC 1274

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2004 404 527

B  

Appellant

v

POLICE

Respondent

Hearing:         4 February 2005 Appearances: Shane Cassidy for appellant

Kevin Glubb for respondent Judgment: 4 February 2005

[ORAL] JUDGMENT OF WILLIAMS J

Solicitors:

Crown Solicitor, Auckland

Copy for:

Shane Cassidy, P O Box 26 172 Epsom, Auckland (Email: [email protected])

Judge Anne Kiernan, District Court, Auckland (sitting in the District Court at Papakura)

B    V POLICE HC AK CRI 2004 404 527 [4 February 2005]

[1]    On 3 December 2004, Kiernan DCJ declined an application by the appellant, Mr B   , for bail on a charge of attempting to pervert the course of justice. He has now appealed to this Court against that refusal largely on the ground that it is submitted that the leaned District Court Judge erred in law by giving too much emphasis to factors associated with appellant’s guilt on that charge.

[2]    Mr Cassidy, counsel for Mr B   , emphasised that issue in his submissions, particularly having regard to the fact that the learned District Court Judge did not have before her the depositions taken in relation to that count as they were only taken on 26 January this year.

[3]    By way of background, Mr B    is facing a number of charges of sexual violation by rape, by unlawful sexual connection, indecent assault on a girl under 12, and inducing an indecent act by a girl under 12 in respect of which he was charged in the middle of 2004 and faces trial in the Manukau District Court on 20 June this year.

[4]    Part of the terms of the bail that he was granted in relation to those charges was that he did not contact the young complainant in relation to that matter, or her mother, Mr B   ’s wife. However, it is asserted that on 19 and 20 November last year, there was contact between Mr and Mrs B    during which it is suggested efforts were made by Mr B    which could constitute the charge of attempting to pervert the course of justice and that was in breach of the terms of bail imposed on the sexual offences.

[5]    The position as demonstrated in the deposition evidence given by Mrs B   , is that following Mr B   ’s arrest on the sexual offences there was an estrangement between them arising out of a suggestion which she says was made by the Police or CYFS that if Mr B    remained in the household they  would remove the children. By way of a gloss on that, however, although she was aware of the general terms of Mr B   ’s bail in relation to those offences, she said that she was permitted to speak with him about matrimonial property matters. She said that

she was advised by the officer-in-charge of the case that she and Mr B    could confer on that issue because they had endeavoured to sort the matter out between themselves by email and other contact. That had been unsuccessful. She  had retained a lawyer but had to discontinue those instructions for reasons of cost so the matrimonial property issues between them remained at large, although at the depositions hearing Mrs B    said she regarded them as largely concluded.

[6]    Because of what she said she was told she sent a text message to Mr B   ’s parents asking them to arrange for him to get in touch with her. He rang her and it was as a result that they met on 19 and 20 November 2004. It was those meetings which give rise to the charge of attempting to pervert the course of justice.

[7]    The two met at a restaurant in Bombay and spoke about matters at large between them for about an hour.

[8]    According to Mrs B   , the first meeting was initiated because he had told her he had resumed a relationship with his former wife and she was concerned about that. But she said in her depositions evidence that on that occasion Mr B    said, first, that he wanted her to write a letter saying it was acceptable to her for him to live in Auckland with his former wife. His terms of bail precluded him from living  in Auckland hence the Bombay meeting place.

[9]    Secondly, she said he wanted her to write a letter complaining about Police conduct to the Police Complaints Authority to support a complaint he said he had made to the Authority about the conduct of the officer-in-charge of the sexual offence case.

[10]   Thirdly, she said he told her that in his view the complainant in the sexual offence case had fabricated the allegations and he asked her to talk to the complainant and make her take everything back.

[11]   Finally, she said he claimed he had concluded another man who was an associate of theirs was the offender in relation to the complainant in place of Mr B   .

[12]   They met again on the following day, 20 November, at which it seems the thrust of the previous day’s conversation was repeated but this time with certain additional matters coming to light. In the first place, she said Mr B    had with him on that occasion a sheet of paper containing his bail conditions on the sexual offences which he showed her and read to her. He also gave her the Police Complaints Authority telephone number which she stored in her telephone in order that she could proceed with his request to make a complaint. And thirdly and  perhaps most importantly, she said (p 12 of the depositions) :

“[     ] asked me to stop proceedings by talking to [the complainant XXXX] and to get her to take back what was previously said. I was asked to  do  that.”

[13]   As mentioned,  Mr  B     came  before  the  Papakura  District  Court  on 3 December 2004 on an application for bail. Kiernan DCJ recounted the history of the matter and the submissions made, but the nub of her decision probably is to be found in paras [17] and [18] which read :

[17]I must consider this application for bail with reference to s8 of the Bail Act. I must consider whether there is just cause for your continued detention and take into account three particular matters, whether you may fail to appear in Court, whether you may interfere with witnesses or other evidence, or whether you may offend whilst on bail. Two of those matters are clearly relevant today. The risk as to interference with witnesses is a real risk and you face a charge. Offending while on bail has occurred in that there is now a serious offence alleged against you whilst on bail, and that offence concerns, allegedly, interfering with witnesses. I bear in mind the nature of the offences which you face, and they are amongst the most serious types of sexual offending with young complainants, and the seriousness of the punishment to which you might be subject were you to be found guilty of those offences.

[18]I must also bear in mind the likely length of time before this matter comes to trial, and it is seven months approximately until you will face your trial. However, bearing I mind the seriousness of these alleged offences, and the charge you now face in a context of breach of strict bail conditions, I am persuaded that the Crown and the Police have established just cause for your continued detention.

[14]   Mr Cassidy, in submissions made in support of the appeal, suggested those passages indicated the Judge had largely made up her mind about Mr B   ’s guilt on the attempted perversion of the course of justice charge but when the Judge’s remarks are seen alongside the provisions of s 8(1) (2), it is clear she was merely

making her way through those sections, directing her mind to the various issues required to be taken into account, and reaching various conclusions for bail purposes in relation to those matters.

[15]   The real question therefore is whether the Judge fell into error in her approach.

[16]   In that regard it needs to be borne in  mind  that  down to  the  present  time Mr B    has been granted bail on the sexual offence charges on the conditions earlier mentioned. There has not as yet been any application to the District Court to revoke that bail. Kiernan DCJ’s decision under appeal was one declining bail on the attempted perversion of the course of justice charge. In that regard she was required by s 8(1)(b) and (c) to consider whether there was a risk that Mr B    would interfere with witnesses or offend whilst on bail. In this Court’s view she was amply justified in reaching the view that there was at least a reasonable case to be made out that he would interfere with witnesses both on the attempted perversion of the course of justice charge - his wife - and on the sexual offence charges - his wife and the suggested approach to the complainant.

[17]   There was also an arguable case that Mr B    might offend whilst on bail given that he was on bail on the sexual offence charges at the time of the circumstances said to give rise to the attempted perversion of the course of justice.

[18]   On that basis, therefore, it could not be said the Judge fell into error of law or fact on the approach she took to this matter and in fact, now that the depositions have been taken, Mrs B    having waived her spousal privilege in giving evidence in the manner mentioned, it could be said that the circumstances are even stronger than is the case when the matter came before the Papakura Court. However, all of that  and the testing of these issues is for the future. For the present it  must  be said there is no error of law demonstrated and the appeal is accordingly dismissed.

………………………………..

4 February 2004  WILLIAMS J