D v Police HC Christchurch CRI 2009-409-7

[2009] NZHC 62

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2009-409-000007

D

Appellant

v

POLICE

Respondent

Hearing:         5 February 2009

Counsel:         S Bailey for Appellant

R Thomas for Respondent

Judgment:      5 February 2009

JUDGMENT OF FOGARTY J

[1]      The appellant appeals against a decision of Judge Callaghan refusing bail pending resolution of a charge of aggravated burglary and attempted burglary.  The principal reasons for refusing bail were:  that the probability of conviction is very high and there is a risk of further offending given the clandestine nature of this offending in the very early hours of the morning.

[2]      The decision of the Judge is, as usual, brief and he does not refer to any particular sections of the Bail Act 2000.   It is not clear whether the Judge was applying s 8 or s 12.   Counsel before me agree that s 12 applies, given the history of

this man.   So the Court must be satisfied on the balance of probabilities that the

D V POLICE  HC CHCH CRI 2009-409-000007  5 February 2009

appellant will not, while on bail or at large, commit a burglary, let alone any other serious property offence or offence involving violence etc.

[3]      Ms Bailey’s principal argument on appeal is that the bail history is good inasmuch as it shows only very limited offending while on bail back in 1999 and no breach of bail conditions and no breach of bail offences.  Based on the bail history she argues that therefore this Court should be satisfied on the probabilities that the appellant will not commit burglary while on bail or otherwise offend because the bail history shows that he does not do that while on bail.

[4]      On the facts of this case I do not find that a convincing argument bringing me to satisfaction on the probabilities that this appellant will not commit a burglary. Firstly, the bail history is a record of offending which has been identified while on bail, which is a different question from whether or not there was any offending while on bail.    Secondly, this young man has a most lamentable history of offending, a lot of it including dishonesty (previous burglaries), and he was apprehended with a sophisticated burglar’s kit and admitted, according to the police statement anyway, to burgling in order to get income.

[5]      This is a case in my view where the onus of proof, coupled with the standard of proof, works against the appellant and as a result the application of s 12(5) is the determinant factor.  As I have said, I am not satisfied on the balance of probabilities that he will not commit a burglary during the period of bail.  I should add that the period of bail is likely to extend at least out to August.  Depositions are set down for

6 April.  That is along period to be on bail.  He has a partner.  He has skills as a car painter but he does not have a job to go back to.   Those are factors I took into account in judging that the burden of proof has not been discharged.  As a result it is not necessary for me to go into the other considerations that would apply under s 8.

[6]      This appeal is dismissed.

Solicitors:

S Bailey, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent