B v Police HC Auckland CRI 2009-404-0345

[2009] NZHC 2575

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-0345

B

Applicant

v

POLICE

Respondent

Hearing:         1 December 2009

Appearances: D P H Jones QC for appellant

R Reed for respondent

Judgment:      1 December 2009

JUDGMENT ON BAIL APPEAL OF ALLAN J

Solicitors:

DPH Jones QC, PO Box 1750, Auckland 1140

Crown Solicitor Auckland

B V POLICE HC AK CRI 2009-404-0345  1 December 2009

[1]          Mr B    is a citizen of the USA.   In recent years he has been living in Australia, but has made a number of trips to New Zealand.  On one such recent trip he met and engaged in sexual activity with the complainant in the present case. Subsequently she reported an allegation of rape and other offending to the police. Mr B    was later interviewed and arrested on 17 September 2009, and has been in custody ever since.

[2]      He applied for bail in the District Court on two successive occasions.  On the first the Judge considered there was inadequate information upon which to base a grant of bail.  On the second occasion the District Court Judge considered the risk of flight was too high.  She also thought there was a real possibility of offending while on bail.

[3]         Mr B    appealed to this Court.   In a decision given on 30 October 2009, Courtney J dismissed the appeal.    She echoed the concerns of the District Court Judge  about  flight  risk.    Courtney  J  was  also  troubled  by  the  suggestion  that Mr B   had misled the police about his movements prior to his arrest.  At that time the question of electronic bail was not canvassed.

[4]       This is a fresh application for bail supported by an application for EM bail. Counsel are agreed that the Court has jurisdiction to entertain it in its inherent jurisdiction, but additionally I am advised that Mr B    has now been committed for trial in this Court.   Accordingly, although there is a real prospect that he may be middle banded back to the District Court for trial, there is no doubt that at the present time this Court has jurisdiction in the ordinary way to deal with bail issues.

[5]       Moreover, because a great deal more information is available to this Court than was put before Courtney J, and because the prospect of electronic monitoring was not before her, it is appropriate to approach the question of bail afresh.

[6]       The primary concern of those Judges who have previously dealt with bail is centred  upon  the  risk  of  flight.      It  is  necessary to  deal  briefly  with  the  other considerations to which the Court is required to have regard under s 8(1)(a).   The

first is the risk of interference with witnesses or evidence.  On the police case there is some   prospect    of   interference,    in    that    Mr B      may   be    aware   of   the complainant’s address.  That seems not to be so.  The only residential address he was aware of was an address in Ngaruawhahia which was that of a friend or acquaintance of the complainant.

[7]      As Ms Reed submits, I am bound to take into account the views of the victim in considering bail, but there appears to be no realistic prospect of interference by Mr B  with the complainant.

[8]       A further matter to which the Court must have regard is the risk of offending while on bail.  Ms Reed expresses concern about the apparent sexual proclivities of the  applicant.    There  is  material  before  the  Court  in  the  form  of  a  notice  of opposition by the police that tends to suggest the applicant may well have an interest in sexual activity of a vigorous type – to use a deliberately neutral term – and that may descend into criminal offending, as is alleged in this particular case.

[9]       However, there is insufficient sworn material to justify a refusal of bail on that ground.  Such risk as might exist can be ameliorated by the imposition of bail conditions, if bail is otherwise appropriate.

[10]     The third factor in s 8(1)(a) which has been determinative to date is the risk of flight.  Here it is best to focus upon the concerns quite properly raised by Ms Reed in her submissions.    The first principal point she takes relates to the history of Mr B   ’s  dealings  with  the  police.    They are  particularly concerned  about  him because they take the view he is inherently dishonest and untrustworthy.     That concern  stems  from  communications  passing  between  him  and  members  of  the police  after  a  complaint  had  been  made  in  this  case,  and  before  Mr B     was arrested.

[11]     Briefly, it appears that Mr B   was first contacted by telephone by a police officer who desired to speak to him over the allegations made by the complainant. Mr B    was then in the course of embarking upon a road trip to Wellington with friends.   The officer gained the impression from him that he was

already part way to Wellington, and would be unavailable for some days to meet with the police.  An arrangement was made for him to attend at an interview with the police on 21 September, some days later.  Subsequent inquiries disclosed that at the time  of  the  mobile  phone  discussion,  Mr B     was  in  Auckland  and  not  as  the officer imagined, some distance out of Auckland on his way to Wellington.    The police   believed   Mr B      had   been   less   than   honest   with   them   as   to   his whereabouts.

[12]      In   an   affidavit   sworn   since   Courtney   J   gave   her   decision,   Mr B explains in detail that he had embarked upon his trip, but at that stage he had not progressed very far.   His evidence is he was not dishonest with the police, but he believed there was nothing in the complaint made against him, and the police requirements could properly be complied with if he met with them on his return to Auckland some days later.

[13]     On this present application, it is not possible to resolve the detail of precisely what  passed  between  Mr B     and  police  officer.     It  is  perfectly  possible  the applicant was explaining his position honestly to the officer, while at the same time the officer was led to believe that he was some distance away.  I am not prepared to draw  an  adverse  inference  in  respect  of  Mr  B   ’s  honesty  from  what  passed between him and the officer during this telephone conversation.

[14]      As  matters  turned  out,  Mr B     got  no  further  than  Hamilton.     He decided not to go to Wellington because the weather was poor.    He returned to Auckland and made his way to Northland where he spent a few days.   The police became aware he was not in Wellington and had gone north.   That added to police concern about this man.   On Mr B   ’s side of the equation, he had no reason to believe  his  whereabouts  were  of  concern  to  the  police,  given  his  pending appointment with them on 21 September.

[15]      For present purposes I am not prepared to draw any adverse inference in respect  of  Mr  B   ’s  honesty  in  relation  to  what  occurred  on  the  day  of  his discussion with the police officer and in the days following.

[16]     In fact Mr B   and the police did not meet on 21 September.  He was found in  a  bar  in  central  Auckland  on  17  September,  and  arrested  forthwith.     The successive bail hearings to which I have referred then followed.

[17]     Ms Reed also refers in some detail to the course of events surrounding the existence  of  a  warrant  for  Mr B   ’s  arrest  in  Australia.     In  brief  terms  the background   to   that   is   there   were   outstanding   charges   in   Australia,   where Mr B   had been living, in respect of two separate alleged instances of driving while disqualified.

[18]       Mr B     was  obliged  to  go  to  the  USA  in  order  to  deal  with  a  child support issue in respect of a former partner.  He left the conduct of the disqualified driving  charges  in  Australia  in  the  hands  of  counsel  there.     He  understood, incorrectly, that it was not necessary for him to attend Court in the first instance. When he did not appear warrants were issued for his arrest.  He gave instructions to Australian  counsel  to  the  effect  he  would  return to  Australia  and  deal  with  the outstanding  warrants  and  charges  on  7  October  2009.     He  understood  and appreciated it would be necessary for him to be taken into custody when he arrived back in Australia.

[19]       Rather than returning immediately to Australia, Mr B     and his present partner decided to spend some time in New Zealand, which they had visited on several previous occasions.

[20]     Ms Reed expresses concern about that.   She says there is no documentary proof to support Mr B ’s assertion that there was a firm date of 7 October

2009, by which time he was to present himself to the Australian authorities, and it is an  available  inference  that  he  had  no  intention  of  returning  to  Australia at  all. Rather, she suggests, the Court might properly draw the inference he was simply intending to remain in New Zealand.

[21]     I have  no  reason  to  disbelieve  the  sworn  evidence  as  to  the  position  in Australia.   The arrangements between the Australian and New Zealand authorities are such that such a course of events would have been very short-sighted indeed.

[22]     Mr B   says he intended to spend some weeks in New Zealand, but he would return  to  Australia  in  time  to  surrender  himself  to  the  authorities  there  in  early October.

[23]     Although  the  police  regard  the  Australian  proceedings  as  evidence  of Mr B   ’s  general  dishonesty,  I  am  not  prepared  to  go  that  far.     The  detailed explanation he has given seems to me to carry with it the ring of truth, and I simply put it to one side for present purposes.

[24]      I turn to the police concern about Mr B    in the context of the present EM bail application.   The EM bail regime is now well established.   There is significant authority to the effect that EM bail conditions can, and usually will, significantly limit the risk of flight in cases where it might otherwise not be proper to release an alleged offender on bail.   While accepting that, Ms Reed quite properly points to issues in this case which tend to suggest Mr B ’s flight risk might be relatively high.

[25]     First, she points out that his ties to this country are relatively limited.  It is not a case of a foreign national having an established family and business here, nor does he have assets in the nature of property which tend to tie people to this country.  That point is well made and is entitled to significant weight.   On the other hand there is evidence from Mr B   and his partner to suggest that there is and will continue to  be a   connection   with   New   Zealand.      His   partner,   Ms Berry,   is   a   licensed conveyancer in Australia and has the capacity to transfer her qualifications here, so as to enable her similarly to practise in New Zealand.  Her intention, and that of the applicant  prior  to  the  alleged  offending,  was  to  investigate  the  position  in  New Zealand with a view either to transferring her practice here, or to run a combined Australian/New Zealand practice.    Her proposal is to base herself in Auckland, at least  for  the  period  up  to  and  including Mr B   ’s  trial.     With  her  will  be her granddaughter aged six years who will attend school here.  A rental property on the North Shore has already been leased.  It is proposed that that constitute the EM bail address, if bail is granted.

[26]     Ms Berry will be in New Zealand for much of the time, but accepts it will be necessary for her to go to Australia at times to attend to her business affairs there. On the other hand it seems that if her granddaughter attends school in New Zealand, inevitably Ms Berry will need to spend most of her time here.

[27]      A further concern raised by Ms Reed is as to the possibility Mr B   might simply acquire a false passport and leave the country.   As Mr Jones says, that is always a generic risk in any case where a foreign national is concerned.   There is nothing to suggest it is a particular risk in this case.

[28]      In the notice of opposition there is a reference to the applicant’s use of aliases, but there is no detail.  That is vehemently denied by Mr B  .  I cannot give it any significant weight.

[29]      An allied concern expressed by Ms Reed is as to the existence of funds available to Mr B    which might enable him to obtain a passport and facilitate his unlawful departure from this country.  The only evidence before the Court is as to a sum of $27,000 which is held in a bank account in Mr B  ’s name, but which, as has been explained today, is Ms Berry’s money intended to assist in the setting up of the conveyancing practice in this country, and to provide funds for living expenses as required over the next few months.  Such funds will be particularly necessary over the Christmas period when little income could be expected from a conveyancing practice in this country, and if granted bail Mr B   will not be in a position to assist in earning of wages or salary in the short term.

[30]     In my view, the grant of EM bail will significantly reduce the risk of flight. It provides a counterweight to the concerns quite properly entertained by Courtney J on 30 October.

[31]      The issues to which the Court is directed in s  8(2) require only limited consideration.  One issue always of concern to the Court is the likely time that will elapse prior to trial.  Ms Reed says if this case (as is likely) is middle banded to the District Court, it is possible a trial date might be set for some time in mid 2010.  That seems to me to be the earliest likely date given the pattern of defended hearing

allocations in the District Court.   Mr Jones submits that the reality is that the trial will be in the latter part of 2010.

[32]     Accordingly, this is not one of those cases in which a very long period will elapse before trial.  On the other hand, the period concerned is sufficiently long for it to weigh in the balance in favour of the grant of bail.

[33]     Another factor is the strength of the Crown case.   Ms Reed has taken me through some aspects of that.     What started as a consensual sexual relationship degenerated into claimed offending.  There is some forensic material that might, on one view, support the complainant’s case as to the detail of what occurred.   At the same time that material tends to suggest that Mr B  ’s account, voluntarily given to  the  police,  might  not  be  entirely correct  in all  respects.    There  is  at  least  a respectable case for the Crown to run, although ultimately the decision will depend upon the evidence of the complainant and the alleged offender.

[34]       Mr B     has  no  history  of  offending  while  on  bail  in  this  country,  or breaching Court orders.     I set to one side the Australian proceedings and the difficulties that arose there, for the reasons I have already discussed.  It is important to take into account the serious character of the charge he faces, but that of itself cannot militate against the grant of bail.

[35]     During the  course of  submissions,  the  possibility that  a  surety might  be proffered  was  considered.     I  adjourned  briefly  to  enable  Mr  Jones  to  take instructions.    It emerges that beyond the $27,000 there are no funds from which security might be furnished.

[36]     Ultimately,  having  weighed  the  issues  which  I  am  required  to  take  into account in s 8(1) and those in s 8(2), I consider the risks to which I have referred, and in particular the risk of flight, will be sufficiently ameliorated by the grant of EM bail to justify the grant  of such bail.    Accordingly, there will be an  order that Mr B   be released on bail, upon the conditions which appear in the EM bail report dated  1  December  2009  at  p.5.    Those  conditions  are  respectively  1-14

appearing at the top of p 5 together with conditions 1-6 which appear immediately underneath the first set of conditions – 20 conditions in all.

[37]      For the avoidance of doubt condition 12 on p 5 is supplemented by the following direction;   namely that upon Mr B   ’s release from Auckland Central Remand Prison he is to be taken by Ms Berry on the most directly available route to

30A Lancaster Road, Beachhaven, Auckland, there to remain and await the arrival of the EM bail authorities.

C J Allan J