C v Police HC Auckland CRI-2007-404-168

[2007] NZHC 1848

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-404-168

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 June 2007

Appearances: R Mansfield for Applicant

T Simmons for Crown

Judgment:      15 June 2007

ORAL JUDGMENT OF CLIFFORD J

Introduction

[1]      This is an appeal against a decision of District Court Judge Aitken on 1 June

2007, declining bail to the defendant Mr C  .

[2]      Mr C   is facing a charge of threatening to cause grievous bodily harm to Danielle Beston, the daughter of Mr Stephen Beston.   The Crown’s case is that Mr C   threatened grievous bodily harm to Danielle Beston in order to encourage

her father to repay an alleged debt.

C V NEW ZEALAND POLICE HC WN CRI-2007-404-168  15 June 2007

[3]      In a carefully considered, reserved, decision, Judge Aitken declined bail.  She did so because she concluded that s 12(1)(a) of the Bail Act applied to Mr C  .

[4]      This is not disputed.

[5]      On that basis that it was necessary for Mr C   to satisfy her that bail should  be granted,  having  regard  to  the  criteria set  out  in s 8  and  the  primary consideration articulated in s 12(7) of the Bail Act.   Further and in particular, in certain terms of s 12(5), she had to be satisfied that, on the balance of probabilities, the appellant would not commit any violent or dangerous act if granted bail.

[6]      The Judge noted that the issue here was not one of risk of failure to appear, but rather of risk of interference with witnesses and of risk of re-offending.

[7]      As  regards  the  risk  of  interfering  with  witnesses,  the  Judge  noted  the appellant’s criminal history, including no less than seven charges of breach of protection orders and two charges of male assaults female.  In the Judge’s view this was a clear indication not only of the appellant’s use of violence, but his disregard of orders of the Court.  It strongly suggested to her that bail conditions were unlikely to be a significant deterrent.

[8]      She also identified the risk of offending while on bail.   She noted that the appellant’s history was replete, which it is, with examples of offending on bail, and that the appellant was on bail when the current charges arose.   On the question of recent  offending, Mr Mansfield had submitted to  her  that the appellant’s recent criminal history was domestic related, and that his domestic life was now under control.   In that regard, Mr Mansfield had pointed to the fact  that the sentence imposed two or three days previously in the District Court in respect of the last charge of contravening a protection order was, in his submission, evidence of the appellant’s improved behaviour pattern.

[9]      The Judge recorded that Mr Mansfield had urged her to find there was no real likelihood of offending whilst on bail, but that in the face of the appellant’s record she could not accept that.

[10]     Having considered all these matters, and in particular that under s 12 the appellant had to satisfy her on the basis of probabilities that he would not commit further violent offending whilst on bail, she considered that he had not discharged that burden.

[11]   The requirement that the safety of the victim was to be a paramount consideration reinforced her finding in that regard.

[12]     Finally, the District Court Judge had regard to the fact that there was likely to be a delay to trial.  She acknowledged that it would be for a minimum of 12 months and could be more.  However she could not say that any penalty imposed would be less than time served.  In any event she recorded, since s 12 applied, as she had noted earlier issues of the presumption of innocence and delays to the trial did not assume the significance in the bail application before her than they otherwise would have.

Approach on appeal

[13]    This is an appeal against Judge Aitken’s decision where, exercising her discretion, she declined to grant Mr C   bail.

[14]     As such, it is well settled that a Judge of this Court should only interfere on appeal if satisfied either that the District Court Judge erred in law, failed to take into account relevant considerations, gave undue account to irrelevant considerations, or was plainly wrong.

Submissions on appeal

[15]     In his submissions on appeal, Mr Mansfield covered much of the ground the

District Court Judge had referred to him placing before her.

[16]     In terms of the criteria to be met on appeal, his submission was to be that the

Judge was plainly wrong in reaching the decision that she did.

[17]     The reason she was wrong was that, although s 12 technically applied, it did so by reference to an offence, namely receiving stolen goods, that did not give rise to concerns as to violence.   Further, the appellant had concluded his association with the gang mentioned – this was not gang activity – and the recent violent offending had involved breaches of protection orders and male assaults female.  This was, Mr Mansfield explained, committed in a domestic context and was not therefore the type of offending that involved a risk to the wider public or to the complainants in this matter.  Furthermore the issues that had given rise to that violence had been resolved and Mr C   now had access to his daughter by agreement.  Therefore the Judge was wrong to  reach the conclusion she did as regards the appellant  not  having satisfied the onus on him, or that he was a risk of offending whilst on bail or of breaching bail.

[18]     Mr Mansfield also referred to various aspects of the Crown case that the appellant disputes, to the time to trial (in his submission up to 18 months), to the difficulty for the appellant dealing with bankruptcy proceedings whilst in custody, and to the impact of his being in custody on access arrangements as regards his daughter.

[19]     He submitted that the alleged offending was not of the most serious of its type, and that a custodial sentence would not be long, that alternative sentences might be possible and there was therefore a risk of the appellant serving more time on remand than would be required by any sentence.

[20]     He proposes conditions.

Crown Submissions

[21]     In the Crown’s submissions, the Crown emphasised that the Judge was acting within her discretion and, in terms of the decision she reached, was well within that and could not be said to be plainly wrong as was required on appeal.  The Crown, in terms of the two risks identified by the Judge, relied particularly on the risk of offending.  The Crown took me to the appellant’s bail history and identified various instances of offending whilst on bail, including recent instances of that occurrence.

Mr Simmons noted that the appellant had been on bail for four charges at the time of the events giving rise to the charges at issue here today and that two of these, in particular the charge of receiving stolen goods and a fourth charge of unlawful possession of a home-made shot gun, were of particular significance.

[22]     He said that the risk of re-offending conclusion reached by the Judge was well within her discretion.

[23]     As regards the second risk factor, that of interference with witnesses, the Crown referred to the nature of the conduct which has given rise to the charges as being relevan, whilst acknowledging that whether or not the appellant was on bail may not be particularly determinative of the nature of the risks they were pointing me to.

[24]     The Crown acknowledged the length of time to trial, but said that in these circumstances that was a matter that the Judge had considered.

Discussion

[25]     I have carefully considered Mr Mansfield’s submissions.  They are in many respects challenges to the weight the District Court Judge placed on a number of relevant  criteria,  which  when  taken  together  Mr  Mansfield  argues,  supports the conclusion that she was plainly wrong.

[26]     However in my view, the Judge considered relevant criteria and in particular paid careful attention to the issue of time to trial, which is the one matter which has given me particular pause for concern in this case, as I think it was appropriate that she do.

[27]     I am, therefore, not satisfied that Mr Mansfield has shown that the District Court Judge was plainly wrong.   Rather, in my view she obviously and carefully considered relevant criteria and reached a decision that was open to her.

[28]     I say this particularly having regard to the fact that s 12 applies and to the history of Mr C   as to offending whilst on bail, notwithstanding the domestic

context Mr Mansfield has put to me today as explaining much of the recent violent- offending.  I am not able to accept that that context means that those offences and matters have no relevance here, and could not be relied on by the District Court Judge in the way she did.

[29]     On that basis, this appeal is dismissed.

“Clifford J”

Solicitors:        Ron Mansfield, Auckland for Appellant

Meredith Connell, Auckland for Crown