B v Police HC Rotorua CRI 2008-463-12/13

[2008] NZHC 170

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2008-463-12/13

B

Appellant

v

THE POLICE

Respondent

Hearing:         21 February 2008

Appearances: A Schultze for appellant

R Bird for respondent

Judgment:      21 February 2008

ORAL JUDGMENT OF ALLAN J

Solicitors:

Lance Lawson, Rotorua

Crown Solicitor Rotorua

B V POLICE HC ROT CRI 2008-463-12/13  21 February 2008

[1]      Mr B   appeals against a decision of the District Court at Rotorua, given on 19 September 2007, in which he was refused bail.   It is necessary to canvass briefly the history of the offending and the procedural history of the case in the District Court.

[2]      On 4 September 2007, Mr B   was asked by a female acquaintance to assist her in organising her male flatmate’s departure.  In the course of doing so, the appellant is alleged to have assaulted the male flatmate and to have used threatening language to him.  The complainant’s evidence of having been assaulted is supported to some degree by the account of the Police Officers who attended at the time.  As a result of that incident the appellant was charged with common assault and with speaks threateningly.

[3]      He appeared before the Court on those charges on 12 September 2007 when he was released on bail.

[4]      On the following day, 13 September 2007, the appellant became enmeshed in further difficulties.   When attending licensed premises he identified a person he thought to be an associate of someone who owed the appellant money for drugs. After  a  sustained  period  of  altercation  between  the  appellant  and  the  alleged associate, the appellant is said to have required the associate to accompany him in his motor car for the purpose of taking him to the address of the appellant’s debtor, which the associate had identified for the appellant.  The police took the view that the associate had been taken against his will.  Once at the address, the appellant is said to have broken a car window, thought to belong to his debtor.

[5]      Very shortly thereafter the appellant was apprehended in his motor vehicle, still in the company of the associate and a third person.  He was breath tested and found to be significantly over the lawful breath alcohol limit.   Later that morning, after he had been processed, the police realised the appellant was the same person who was the subject of a complaint made in respect of the alleged offending against the debtor’s associate.  He was then apprehended and searched.

[6]      As a result of the incidents on 13-14 September, the appellant was charged with kidnapping, intentional damage, and possession of class A and class B drugs, namely LSD and cannabis resin respectively.

[7]      He appeared in the Taupo District Court on 14 September and was remanded in custody.   On 19 September 2007 an application was made for bail, which was opposed.  Judge Weir refused the application upon the primary grounds that there was a risk the appellant would interfere with witnesses, and that he would offend while on bail.

[8]      Subsequently Mr Schulze was briefed on behalf of the appellant.  He made a further application for bail on 8 October 2007, not at that time having been made aware of the earlier unsuccessful application.  During the course of the bail hearing, the Judge and Mr Schultze became aware of the earlier decision.  The upshot was Judge McGuire was not prepared to differ from the earlier decision to decline bail. This appeal has followed.

[9]      This morning Mr Schultze makes two main submissions:

a)       The two concerns which prompted the refusal of bail in the District Court   could   have   been   accommodated   by   the   imposition   of appropriate conditions;

b)As matters have emerged, there will be such a long delay before this man comes to trial, that it will be unjust for him to continue to be detained while on remand awaiting trial.

[10]     As to the first point, Mr Schultze refers to the appellant’s previous history. His history of previous offending is disappointing to say the least.   For example, there are nine previous convictions for drug offending alone.   But significantly, against that background, there is no history of breach of bail conditions, and no history of offending whilst on bail.

[11]     Having said that, it is understandable that the Judge  should  have  placed considerable emphasis on the fact that this man effectively went out, having been released on bail, and committed further offences virtually immediately.

[12]     As to the concern of the police about the safety of the alleged kidnapping complainant, Mr Schultze’s point is that that concern could quite simply have been accommodated by the imposition of appropriate conditions.   I will return to that point presently.

[13]     It is now some months since the District Court declined to grant bail.  I turn to the course of events since the decision was given.  The charge of kidnapping is indictable.   The appellant’s case has been considered by this Court and under the established middle banding procedures has determined that the appellant should be tried on that count in the District Court at Rotorua.   There is to be a callover in respect of that count on 2 April 2008, but counsel agree that the ultimate trial is unlikely to take place much before the end of 2008.  If Mr B   remains in custody until his trial, he will have been incarcerated for significantly more than one year, unless the current appeal succeeds.

[14]     Measured against the totality of his alleged offending, and assuming that he is convicted on all the charges he currently faces whether indictable or summary, it is unlikely that the period he will be called upon to serve, given the current state of the law as to parole, will be much greater than the period of more than a year which he will have served on remand, unless the appeal succeeds.  That is a matter of serious concern against the background of the overall culpability of the appellant, measured against the assumption he is guilty of all the charges laid.

[15]     In my view it is appropriate to allow the appeal on the twin grounds advanced by Mr Schultze.   It is sufficient to deal with the matter by way of appropriate conditions.   Mr Bird has responsibly recognised the compelling character of the arguments  advanced  by Mr  Schultze,  in  indicating  that  although  the  police  are unable to consent to the grant of bail, there appear to be strong grounds for allowing the appeal.

[16]     In those circumstances the appeal is allowed.  Mr B   will be granted bail on the following conditions:

a)       The grant of bail is to take effect only on the approval by the police of the proffered address, 29 Darling Avenue, Napier.  The Court is told the appellant had been living there with his partner of 18 years, and their two children.

b)The appellant is not to be in Taupo at any time, save for the purpose of attending at the District Court or travelling through Taupo in order to see his counsel in Rotorua.  In the latter event, there is to be prior written notification to the police of at least 48 hours.   If it becomes necessary for Mr B   to travel through Taupo for that purpose, he is to use the most direct route, and is not to stop in Taupo except in case of emergency.

c)        The appellant is to report twice weekly to the Napier police between

4-6 pm on Mondays and Fridays.

d)The appellant is to consume no alcohol or drugs except such as may be prescribed by a registered medical practitioner;

e)       The   appellant   is   not   to   be   on   licensed   premises   except   for supermarkets.

f)        The appellant is not to associate with any complainant or witness in respect of the charges which he currently faces.

C J Allan J