B v Police HC Auckland CRI-2007-404-351

[2007] NZHC 1501

This case has been anonymized

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-404-351

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 December 2007

Appearances: M A Kennedy for the Appellant

B D Tantrum for the Respondent

Judgment:      19 December 2007

(ORAL) JUDGMENT OF DUFFY J

Solicitors:   M A Kennedy P O Box 6955 Auckland for the Appellant

Meredith Connell P O Box 2213 Auckland for the Respondent

B V POLICE HC AK CRI-2007-404-351  19 December 2007

[1]      B   has appealed against a decision of Judge Aitken in  the  District  Court  at  Auckland,  dated  1  October  2007,  refusing  him  bail. Mr B   is charged at that time with being a male assaulted a female, namely Linda Schollum, on 27 September 2007.  Since Judge Aitken’s judgment on the bail application, the Police have laid a more serious charge of wounding with intent to injure under s 189(2) of the Crimes Act 1961 in respect of the same incident.  This charge was laid on 17 October 2007.

[2]      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.

[3]      I have read carefully the judgment of Judge Aitken.  The Judge notes at [3] of her judgment that the Bail Act 2000 was amended with effect from 1 October 2007 and she recorded that she was required as a result of that amendment to determine whether there was a real and significant risk that Mr B   would fail to appear if granted bail; would interfere with witnesses if granted bail; or offend if granted bail.  The Judge noted she had given careful consideration to the application made. She then referred to Mr B  ’s previous list of convictions, which she said exceeded  50  convictions  for  assault  (five  of  which  were  particularly  serious offences) and 16 for wilful damage.   The Judge also estimated that there were approximately 28 convictions for breaching Court orders, predominantly for failing to appear but also breaching sentences of periodic detention, conditions of parole, and community work.   The Judge noted that coupled with those offences were numerous offences for dishonesty and drug and alcohol related offences.   She described Mr B   as someone who was a:

… regular appearer before the Courts over the past 20 years and you have been imprisoned on several occasions including for violent offending.

[4]      The present offence for which bail is sought was recognised by Judge Aitken as offending allegedly whilst on bail for other offences.  The Judge recorded that the victim of the offence, Ms Schollum, who is also Mr B  ’s partner, had informed Judge Aitken that she was not afraid of Mr B  , that she did not want him remanded in custody and she suggested that the defence would be that the injury she suffered occurred during a “play-fight”.   The Judge took note of the injuries to Ms Schollum and the Police case, which she was told was a strong one with independent witnesses.   She went on to say that having carefully considered Mr B  ’s previous convictions, the facts alleged against him and the Police “Grounds for Opposing Bail”, that bail should be declined.  She noted at [13] she could not be satisfied in respect of any conditions she might impose that Mr B   would not interfere with witnesses, would not offend whilst on bail, and she recorded her doubts as to whether he would attend Court in light of his previous history and the circumstances.

[5]      Since the Judge gave her decision, the injury, allegedly the result of a play- fight, now forms the basis of a charge of wounding with intent.  It is acknowledged in the submissions for Mr B   that Ms Schollum has experienced a broken eye socket.   This charge is laid indictably and the deposition hearing is set for

12 February 2008.  Ms Kennedy, for Mr B  , in written submissions, points to the delay that will be experienced as the trial date will not be until late 2008 or even early 2009.  The submission is that due to the delay in obtaining a trial date, which will, therefore, result in a long remand in custody, Ms Schollum’s view that she supports Mr B   being granted bail and the provisions of the Bail Act, this is a case where it is appropriate for bail to be granted.  It is submitted that there is no real and significant risk that Mr B   will re-offend, particularly in respect of Ms Schollum, as he has no convictions or other allegations of violence relating to her.

[6]      In oral submissions today, Ms Kennedy again stressed the delay and, more importantly, Ms Schollum’s view that Mr B   should be granted bail.  I am told that Ms Schollum feels that she is in no danger from Mr B  .

[7]      I accept all the submissions that have been made for Mr B  .   Ms Kennedy has said all that can be said for him.  However, a grant of bail in this case is not a decision that I have jurisdiction to make as an original decision.  The decision was made by Judge Aitken, and in this appeal it is for Mr B   to show that Judge Aitken has erred in law in reaching her decision.   The submissions I have heard fail to establish that Judge Aitken has made an error of law, failed to take into account all relevant matters, has taken into account an irrelevant matter or was plainly wrong.   My assessment of Judge Aitken’s decision is that she has taken careful note of the amendment to the Bail Act, considered the question of bail for Mr B   in the light of that amendment and found him to constitute a risk in terms of s 8.  I see no flaw in her reasoning.

[8]      Since   Judge   Aitken   gave   her   decision,   matters   have   worsened   for Mr B   because he is now facing a serious charge of wounding with intent that has been laid indictably.

[9]      In  all  the  circumstances,  Mr  B    has  failed  to  meet  the  tests  for persuading  a  Court  to  intervene  in  a  bail  appeal.    Accordingly,  the  appeal  is dismissed.

Duffy J