D v Police HC Auckland CRI 2008-409-53

[2008] NZHC 2263

This case has been anonymized

ORDER PROHIBITING PUBLICATION OF ANY PART OF THE PROCEEDINGS (EXCEPT THE OUTCOME) UNTIL FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND

CRI 2008-409-000053

CRI 2008-409-000054

D

Appellant

v

POLICE

Respondent

Hearing:         17 April 2008

Counsel:         M J Knowles for Appellant

T J Mackenzie for Respondent

Judgment:      17 April 2008

JUDGMENT OF FOGARTY J

[1]      This is an appeal against a refusal of bail on 13 March.  It was called before me on 2 April and I gave an oral judgment on that day calling for a clinician’s assessment of his mental health stability and adjourning the case to be considered afresh.

[2]      Mr Knowles has been able to produce today a letter from the appellant’s general practitioner, Dr Bagshaw.   That note records that since November 2006,

when his partner left home, things had been gradually getting worse, that he needs

D V POLICE  HC CRI 2008-409-000053  17 April 2008

ongoing treatment  for  his  anxiety and  past  sexual  abuse,  which  would  be  very helpful in assisting him to handle his anger and drug issues.  He is charged with a number of assaults:   male assaults female;   assault with intent to injury;   and threatening to kill;  all arising out of an incident on 6 March, and assault with intent to injure on 11 March, and a common assault against another person present at the time on the same day.

[3]      He is defending these charges and I apprehend there is a good basis for this Court thinking that the police may be over-charging when alleging assault with intent to injure and that may be the reason why he is defending them.  He apparently is arguing that on 11 March there was no assault at all but I think the police case is likely to be fairly strong in that regard although with a question mark as to whether it is assault with intent to injure.  As I have had occasion to observe before, the fact that there are injuries it does not follow that the mens rea is present.

[4]      In any event, the fact is he is defending the charge and the fixture is set for

4 July.  In the meantime he is in custody.  He has never before been sentenced to imprisonment.  So he is a relatively young man in prison and likely to have been in prison for about four months before trial.  This poses something of a problem if, as I think is quite possible, he will not be convicted on charges as serious as those he now faces.   However, on the other hand there is a sound basis, confirmed by his doctor, that his behaviour has deteriorated since the break up of his relationship.  His former partner is still in close contact with him.  She is visiting him in prison.  She has a protection order taken out against him.  His mother is prepared to have him live with her.  These are all factors in his favour, but in my judgment are not enough to tip the assessment of the learned District Court Judge that there is an unacceptable risk he will commit further acts of violence against his former partner if he is granted bail.   While he has not been charged with an offence against the Domestic Violence Act 1995 the circumstances of the complaints drove the District Court Judge to the conclusion that s 8(4) of the Bail Act 2000 does apply and the need to protect the woman is a paramount consideration.

[5]      This is a case where the need to protect the complainant is a paramount consideration  and,  like  the  District  Court  Judge,  I am  influenced  by the  police

assessment  recorded  in  my  judgment  of  2  April  that  he  is  in  an  extreme  risk category.  As also recorded, he has been diagnosed with mild schizophrenia and he is currently taking prescribed medicines.

[6]      For these reasons, whilst it is unsatisfactory and inevitable that sooner or later, with adequate protections in place, he will have to be introduced back into the community, I think under the criteria of the Bail Act the decision of the District Court Judge is made according to correct principles.  I do not think it is necessary to try to fit this case into s 8(4).  I am not satisfied that there has been any material error of principle or that the decision is manifestly wrong and second, having to a degree considered it afresh this morning in the light of Dr Bagshaw’s report and the letter from  the  appellant’s  mother,  and  the  submissions  from  Mr  Knowles,  I  am  not satisfied that he should be granted bail.

[7]      Accordingly the appeal is dismissed.

Solicitors:

M J Knowles, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent