B v Police HC Auckland Cri-2009-404-332 - [2009] NZHC 2051

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-000332

B

v

NZ POLICE

Hearing: 3 November 2009

Appearances: L B (in person) C Ryan for Crown

Judgment: 4 November 2009 at 9:00 am

JUDGMENT OF WHITE J [Appeal against bail conditions]

This judgment was delivered by me on 4 November 2009 at 9:00 am pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

Date: ………………….

Solicitors:
Crown Solicitor, PO Box 2213, Auckland 1140

Copy to:
L W B , 66 Gulf View Road, Murrays Bay

B V NZ POLICE HC AK CRI-2009-404-000332 4 November 2009

[1] This is an appeal by Mr B against bail conditions imposed by
Judge P A Cunningham in the District Court at Auckland on 13 July 2009.

[2] It was apparent from Mr B ’s notices of appeal and oral submissions in support that he has a number of concerns about the proceedings in which he is involved and that not all of the concerns related to this appeal.

[3] Mr B indicated that the specific bail conditions which he sought to have changed were:

[1] The permanent residence condition referred to in paragraph [10] of the District Court Judge’s decision;

[2] An apparent requirement to report to the probation service every two weeks which is not in fact referred to in the District Court Judge’s decision; and

[3] A condition not to associate with the persons named in paragraph [11]
of the decision.

[4] Mr B sought a variation to the personal residence condition to enable him to conduct his business within New Zealand which he explained involved contact with hotels and motels in other centres. He did not, however, provide the Court with any evidence in relation to this business.

[5] As far as the probation service reporting condition was required, he submitted that it was no longer necessary.

[6] He submitted strongly that the condition not to associate with the persons named in paragraph [11] was the wrong way round and that they should be required not to associate with him.

[7] Ms Ryan for the Crown opposed any change in the bail conditions. She referred to the outstanding cases before the District Court mentioned in paragraphs [13] to [16] of the District Court Judge’s decision. She also produced a copy of Mr B ’s criminal record which shows that two cases involving convictions in the District Court on serious offences for which terms of imprisonment were imposed are under appeal to the Court of Appeal.

[8] Ms Ryan helpfully said that, if requested by Mr B , she would take steps to clarify the following matters:

[4] The accuracy of his criminal record which he disputed;

[5] Whether the probation service reporting condition was still required;
and

[6] Any possible breach of the name suppression order which was also made by the District Court Judge in her decision.

[9] In the absence of any evidence to support the variations to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading B v Police HC Auckland Cri-2009-404-332

Details

AGLC: B v Police HC Auckland Cri-2009-404-332 [2009] NZHC 2051
Case: [2009] NZHC 2051
Decision Date: 4 November 2009

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of B v Police HC Auckland Cri-2009-404-332 involved an appeal by Mr. B against bail conditions imposed by Judge P A Cunningham in the District Court at Auckland on 13 July 2009. Mr. B sought to appeal the conditions regarding his permanent residence, an alleged requirement to report to the probation service every two weeks, and a condition stipulating that he must not associate with certain named individuals. The appeal was heard on 3 November 2009, with Mr. B appearing in person and Ms. Ryan representing the Crown.

The primary legal issues before the court were whether the bail conditions imposed by the District Court were justified and whether Mr. B had provided sufficient evidence to warrant a variation of these conditions. Mr. B argued that the conditions were overly restrictive, particularly the permanent residence condition and the requirement not to associate with certain individuals. However, Ms. Ryan opposed the appeal, citing Mr. B's criminal history and the need for clarification on several points, including the accuracy of his criminal record and the necessity of the probation service reporting condition.

The court, presided over by Judge D.J. White, found that there was insufficient evidence presented by Mr. B to support the variations to the bail conditions he sought. The court noted that the outstanding cases mentioned by Ms. Ryan, involving serious offences, were still pending and could affect the conditions imposed. Moreover, the court highlighted the need for Mr. B to clarify the matters Ms. Ryan raised, including the accuracy of his criminal record and the requirement for probation reporting. Consequently, the appeal was dismissed, and Mr. B was encouraged to make a further application to the District Court under s 34 of the Bail Act 2000, supported by appropriate evidence.

The final order of the court was that the appeal against the bail conditions was dismissed, and Mr. B was advised to consider making a further application to the District Court for variation of his bail conditions, if supported by adequate evidence.

Orders