Cotter v Police HC Wanganui CRI 2009-083-817

[2010] NZHC 1000

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2009-083-817

BETWEEN  JOSEPH EDWIN COTTER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         30 March 2010

Counsel:         M Bullock for Appellant

L Rowe for Respondent

Judgment:      30 March 2010

ORAL JUDGMENT OF MILLER J

[1]      This is an application for EM bail.  Mr Cotter stands charged with others of wounding with intent to cause grievous bodily harm, assault with intent to injure (x2) and aggravated burglary, all arising out of an incident on 15 August 2009.  It is said that the group went to a property and challenged the occupants to a fight before being told to leave.  They returned and entered the property.  He was carrying a pair of knuckle dusters, and seriously assaulted three people, including a 16 year old female.  It is also alleged, although it is not the subject of any charges against him, that he was involved in a subsequent assault in Wanganui some days later.

[2]      Mr  Cotter  is  aged  nearly  28  but  has  some  80  previous  convictions, approximately 21 of which indicate a propensity for violence.  Thirty-eight resulted in imprisonment.   His compliance with bail and community-based sentences has been  poor;     he  has  four  convictions  for  breaching  Court  orders  relating  to community-based sentences, and some 45 convictions for offences committed while

on bail.

JOSEPH EDWIN COTTER V NEW ZEALAND POLICE HC WANG CRI 2009-083-817  30 March 2010

[3]      It is common ground that ss 10 and 12 of the Bail Act apply;  the onus is on Mr Cotter to demonstrate that bail should be granted, and he must satisfy me on the balance of probabilities that he will not commit any offences of violence or serious property offences.   The need to protect the safety of the public is a primary consideration.

[4]      Bail is opposed by the police and CYFS.   The police say that they have a strong  case,  and  contend  that  there is  a risk  that  Mr  Cotter  will  interfere with witnesses, offend while on bail, and abscond.  CYFS are concerned for the position of his former partner, Ms Higgott, whose house would be the bail address.  She was not involved in the present charges, but she has a protection order against him and there  is  a  history of  offending of domestic  incidents.    Counsel’s  instructions,  I record, are that she wants to have the protection order discharged.  However, for the moment, it remains in place.  She is present today and I acknowledge her support for the application.  She has consented to EM bail and the address is otherwise suitable.

[5]      That  Mr  Cotter  does  oppose  risks  of  absconding  and  interfering  with witnesses, and of committing offences, seems clear.   His history alone points to a risk of further violent or dishonest offending, and twelve witnesses have sought anonymity, based on his membership of or association with the Hells Angels gang.  I acknowledge that he disputes that association.   Perhaps of even greater concern is that a strong contra-indication to EM bail is the protection order against Mr Cotter in favour of Ms Higgott.  He points to the presence of children of the relationship with whom he wishes to live, but the fact remains that there have been seven previous incidents and although he denies that the incident involved Ms Higott there is the previous conviction in 2009 for assaulting a female.  I observe too that one of the alleged victims of the present assaults was a 16 year old woman who was attacked apparently without provocation and knocked unconscious.  In the circumstances, the risk of further offending must be considered high.   I observe too that although Mr Cotter has been in custody for seven months, his trial is set for 16 August.

[6]      In  the  circumstances,  I  am  not  satisfied  that  EM  bail  is  appropriate.

[7]      The application is dismissed.

Miller J

Solicitors:

Crown Solicitor’s Office, Wanganui for Respondent