B v R HC Hamilton CRI-2009-019-10579

[2010] NZHC 765

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2009-019-10579

B

Applicant

v

THE QUEEN

Respondent

Hearing:         26 May 2010

Appearances: B Hesketh for the applicant

R Douch for the respondent

Judgment:      26 May 2010

JUDGMENT OF CLIFFORD J

[1]      Mr B   applies again for bail.  Mr B   is charged with two others with murder.  I refer to the recent callover minute of Harrison J of 23 April which records the current status of these matters.

[2]      On 16 March Andrews J declined an application by Mr B   for bail.  She did so principally, as I read her judgment, by reference to the fact that the address proposed, whilst it was away from Hamilton and might therefore have addressed the risk identified by the Police of interference with witnesses, did not appear that day to be available.  That is, the address identified by Mr B  , namely the home of his

partner’s mother at her rural Whakatane location, was not available as his partner’s

B V R HC HAM CRI-2009-019-10579  26 May 2010

grandmother said she hardly knew the applicant and did not wish him to be bailed to her address.

[3]      In reapplying for bail to that address, Mr Hesketh has provided the Court with an affidavit from Mr B  ’s partner’s grandmother Katherine Kerepani Wirangi.  In that affidavit Ms Wirangi deposed that, in reporting to the Court that the applicant would not be welcome to live with her on bail, the Police had not reported her views to the Court correctly.   She said she had no difficulty with Mr B   residing with her and her granddaughter at her address on bail until his trial.  She said further that she understood the Police may seek a condition of bail that he remain at the address between certain hours.   She had no difficulty with such a condition being imposed, and knew that the Police might call to her address to check that the applicant was present.

[4]      This morning Mr Hesketh therefore renewed Mr B  ’s application for bail to that address, namely 997 White Pine Bush Road, RD 1, Whakatane.

[5]      As Andrew’s J noted, Mr B   is not bailable as of right.  However, under the Bail Act 2000 he should be released on bail on reasonable terms unless the court is satisfied that there is just cause for continued detention.  Just cause can arise from the risk of flight, reoffending or interference with witnesses.  If such risks cannot be managed adequately by the grant of bail, including by reference to such conditions as may be imposed, then  bail will be refused.    In any case it is a matter for the discretion of the Judge to assess what are the relevant risks and whether the terms of bail address those risks.

[6]      At the commencement of this morning’s hearing of Mr B  ’s application, Mr Douch advised the Court that, on the basis of the address which the Police accept is now available, he had reached the view that it was no longer possible for the Police to mount a viable case of a need for ongoing detention.   Mr Douch then helpfully set out for me the background to this matter, including the nature of the Crown’s case against Mr B   and the reasons for the concerns the Police had had with any suggestion that Mr B   be released on bail into the Hamilton urban area

by reference to his participation in what appeared to be some form of street gang and the risk of intimidation of witnesses and complainants that arose in that context.

[7]      On  the  basis,  however,  of  the  proposed  bail  address  and  appropriate conditions, the Police in effect accepted that it would be appropriate for the Court to allow Mr B   bail.

[8]      Mr Douch proposed the following conditions:

a)        that whilst on bail Mr B   reside at the nominated address of 997

White Pine Bush Road, RD 1, Whakatane;

b)that Mr B  , whilst on bail, not enter the Hamilton area except to attend Court or to consult with Mr Hesketh and, when consulting with Mr Hesketh, prior notification was to be given to Detective D Smith of the Hamilton CIB;

c)        that  Mr  B   was  to  report  on  Mondays  and  Fridays  between

9.00am and 7.00pm to the Police station at Whakatane;

d)       that Mr B   was not to consume alcohol; and

e)       that Mr B   was not to directly or indirectly contact or in any way attempt to contact any of the complaints or witnesses in the case against him.

[9]      In response to that indication from Mr Douch, and with reference to the previous concern of the Police about possible intimidation of witnesses, I enquired of Mr  Douch  whether  there  had  been  any incidents  of  intimation  or  inappropriate contact.   Mr Douch advised me that there had not.   I also enquired of Mr Douch whether it was considered that any curfew conditions were appropriate or necessary. Mr  Douch  advised  that  in  the  Police’s  assessment  such  conditions  were  not necessary.

[10]     On that basis I concluded that the proposed bail address and terms could adequately identify the risk of interference with witnesses that had previously been identified, and I therefore ordered that Mr B   be admitted to bail on the terms proposed by the Police, which Mr Hesketh indicated were acceptable.

[11]     I note that Mr B   is currently on remand to appear on 13 August 2010.

“Clifford J”

Solicitors:   B Hesketh, Barrister, Hamilton for the applicant ([email protected]) The Crown Solicitor, Hamilton for the respondent ([email protected])