B v Police HC Auckland CRI 2009-488-44

[2009] NZHC 1156

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-488-44

B

Appellant

v

THE POLICE

Respondent

Hearing:         1 September 2009

Appearances: R Mansfield for appellant

R Reed for respondent

Judgment:      1 September 2009

JUDGMENT OF ALLAN J

Solicitors:

R Mansfield, Auckland

Crown Solicitor Auckland

B V  POLICE HC AK CRI 2009-488-44  1 September 2009

[1]      This is an appeal by Mr B   against a decision of Judge Duncan Harvey in the District Court at Dargaville on 6 August 2009 declining to vary the appellant’s terms of bail by deleting a non-association condition in respect of the appellant’s wife.

[2]      The appellant faces a charge of assault with intent to injure for which he has elected trial by jury.  Counsel expect the trial to take place some time in 2010.

[3]      The brief background to the alleged offending is that the appellant and his wife ordinarily reside on a rural dairy farm property at Kaihu.  On 30 June 2009 the appellant is alleged to have assaulted his wife on the farm.  The alleged incident was observed by a neighbour who reported the matter to the police.  As a consequence the armed offenders squad was called.  On the police case the appellant struck his wife, causing her to fall to the ground where he kicked her.   When Mrs B   stood up she was struck a second time and again fell to the ground.  It is then alleged that Mr B   knelt on his wife and began to punch her in the head.  The police case is there were between 10-15 punches to the head.  It is alleged that Mrs B   began screaming;  the appellant stood up and she was then able to run into the house. She suffered from bruising to both eyes and to the inside of her knee.

[4]      According to the summary of facts provided to this Court, the appellant offered no explanation to the police at the scene about the incident.  When charged, he was released on bail on certain conditions, among which was one requiring him to refrain from communicating or contacting his wife, or attempting to do so.   That condition was the subject of the application for variation declined by Judge Harvey on 6 August 2009.

[5]      Mrs B   herself did not complain to the police, who were summoned by the neighbour who says he saw what occurred.  Her position now is that she was not assaulted by the appellant at all, rather, all of the quite substantial injuries it is alleged she suffered were the result of a fall in the milking shed.  Mrs B   and the appellant have been living apart since the incident, as is necessarily required by the non-association condition.  The appellant is living on the farm;  his wife and their

four children are living elsewhere.  She now says her husband has not been violent towards her, and she is not fearful either for her own safety or for that of her children.  She has written to the police requesting that they leave her alone in respect of the criminal proceedings, and threatening a complaint to the Independent Police Complaints Authority.  She has asked for a copy of the statement made by her to the police on the day of the alleged incident and says it was taken under duress and in the context of the stress arising from the armed offenders squad arriving at the property without prior notice.  All of that is set out in a letter signed by her. Neither counsel nor the Court have access to the statement initially made by Mrs B  .

[6]      She has also consulted solicitors in her own right.  They have written to the Dargaville police, indicating that she does not wish to provide a statement to the police;  that she wishes to return to her home and to take such steps as are open to her to bring about that outcome.   The solicitors confirm her instructions that the appellant has not been violent towards her, and that she does not fear for her safety or that of her children.  The letter refers to the injuries which were visible at the time of the alleged incident, but the reference is confined to a bruise on her leg, which the solicitors explain was an old bruise, not inflicted by the appellant.   There is no reference to the extensive bruising to the head, including the two black eyes, which the police allege resulted from the appellant’s assault.

[7]      In summary, the police case is supported by the independent witness, who is said to have viewed the incident from his property.  Mr Mansfield says that property is some distance away from the scene of the alleged assault, and there must be questions surrounding the reliability of what the neighbour says, having regard in particular to the unhappy relationship which apparently exists between the appellant and the neighbour.

[8]      Mr Mansfield submits it is not appropriate that the non-association condition remains.  Both the appellant and his wife want it removed.  Mrs B   wishes to return home with the children and resume family life.  There has been no history of prior assaults by the appellant on his wife, and there is no justification for the continuation of the condition, particularly when it has resulted in bringing about a

separation between husband and wife, and therefore the appellant and his children, for a period of many months.

[9]      The police oppose the appeal.  Ms Reed points out that if the assault did not occur as is contended by the independent witness, it is a remarkable coincidence that Mrs B   displays injuries consistent with the alleged assault, but not obviously consistent with a fall in the milking shed.  Moreover, it is a remarkable coincidence, she argues, that Mrs B   should have sustained the injuries at or about the very time at which the witness says he saw the assault.

[10]     The question for the Court is whether the maintenance of the non-association condition is reasonable:  (s 7(5)).  Among the considerations to be taken into account in determining the continuation of the condition in dispute, are the matters set out in ss 8(4) and 8(5) of the Bail Act.  The former subsection requires the Court to take into account the views of a victim of an offence of a kind referred to in s 29 of the Victims’ Rights Act 2002.   That subsection applies here.   Section 8(5), which is primarily directed at the question of whether to grant bail at all, nevertheless emphasises the need for the Court to consider primarily the protection of the victim of the alleged offence.

[11]     It is relatively commonplace for the Court to be asked to impose a condition which protects the victim, despite the victim’s contention that he or she does not require protection.  The necessary inquiry will normally entail an assessment by the Court of the extent of the risk that the victim is under the influence of the alleged offender, and so is unable to express him or herself independently.

[12]     Here, as Mr Mansfield points out, there is no history at  all of domestic violence.    This  couple  has  been  married  for  10  years  and  have  four  children. Mr B   has a history of violent offending against others, including assaults on several other persons in a non-domestic context.  There are also outstanding firearms offences.

[13]     The issue for the Court is whether it is appropriate to accede to the plainly expressed desire of Mrs B   to return home with her children to the family farm,

against the background I have described.  She has expressed her views firmly and with remarkable tenacity;  she has consulted independent lawyers who have set out their instructions in their letter to the police and she has herself signed a statement which indicates that she believes she was under no threat of violence from the appellant.

[14]     The Court will ordinarily require some persuasion before refraining from imposing a non-association condition in cases where serious domestic violence is alleged, but I am satisfied that this is a case in which, having regard to the steps Mrs B   has already taken, it is appropriate to give effect to her views and to delete the condition concerned.   I emphasise  I now  have material  which  Judge Harvey may not have seen when he gave his decision on 6 August.   There is no reference in his decision to the solicitor’s letter of 14 July 2009, or Mrs B  ’s statement.

[15]     Section 8(1)(a)(ii) requires the Court to assess the risk that a defendant may interfere with a witness.  If the solicitor’s letter and Mrs B  ’s statement are the result of improper pressure on the part of Mr B  , then as Ms Reed accepts, the damage is already done.  There seems to be no need to maintain the non-association condition in order to protect Mrs B   against interference, particularly when she does not want that protection.

[16]     Section 8(1)(a)(iii) requires the Court to assess the risk of further offending while on bail, but the only such risk here is that there might be another assault by the appellant on his wife.   There is no prior history of such assaults, and in those circumstances  I  do  not  regard  the  provisions  of  s  8(1)(a)(iii)  as  justifying  the retention of the condition in dispute.

[17]     In the end the matter becomes a question of balancing Mrs B  ’s clearly expressed views against the risk that she may have been acting under duress from her husband.  In my assessment, that risk is small.  The history of the matter as explained to me by Mr Mansfield suggests the steps she has taken to make her position known are a manifestation of her independently reached views.

[18]     The appeal is accordingly allowed.  The non-association condition is deleted from the conditions applicable to the appellant’s bail.

C J Allan J