D v Police HC Wellington CRI 2008-485-27

[2008] NZHC 532

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2008-485-27

CRI 2008-485-28

D

v

NEW ZEALAND POLICE

Hearing:         17 April 2008

Appearances: P Young for Mr D 

C Boshier for New Zealand Police

Judgment:      17 April 2008

JUDGMENT OF MALLON J

[1]      Mr D   appeals against two decisions of the District Court each of which declined him bail.

[2]      Mr D   was charged with assaulting a female (s 194(b) of the Crimes Act 1961) and theft of two cellphones (ss 291 and 223(b) of the Crimes Act 1961). He was initially granted bail on conditions but failed to appear  for  a  defended hearing in the District Court at Palmerston North on 3 March 2008.  He was located in Lower Hutt on 17 March 2008 following alleged further offending that day that resulted in a charge of burglary (s 231(1)(a) of the Crimes Act 1961).  On that charge he appeared in the Lower Hutt District Court on 18 March 2008 where bail was refused and he was remanded to 26 March 2008 to the District Court at Palmerston North to fix a new hearing date.  On 27 March 2008 an application for bail was made on the basis that there had been a change in circumstances.  The Judge at Palmerston

North declined this application and remanded Mr D   to 16 April 2008 for a

D V NEW ZEALAND POLICE HC WN CRI 2008-485-27 17 April 2008

defended hearing on the burglary charge.   The defended hearing on the other two charges was set for 2 May 2008.

[3]      The appeal against both the 18 March 2008 and 27 March 2008 decisions was on the basis that the Judges erred in applying s 12(1)(a) of the Bail Act and in applying  too  rigid  a  policy  that  a  failure  to  appear  for  a  fixture  disqualified Mr D    for  bail.    In  respect  of  the  27  March  2008  decision  it  was  also submitted that the Judge erred in not finding a change of circumstances such that bail should be granted.

[4]      There has since been a change of circumstances.   Yesterday the burglary charge was amended to a theft charge and was then withdrawn.   At the time the appeal was lodged the submission that s 12(1)(a) did not apply was incorrect. But with the withdrawal of the Lower Hutt burglary/theft charge it is now the case that s 12(1)(a) does not apply.

[5]      The respondent accepts that while there is some history of offending, and some of that has occurred while on bail, the real thrust of both the Lower Hutt and Palmerston North decisions was the risk of non appearance.   The respondent also accepts that there has been a change of circumstance in that respect.  This morning I have  heard  from  Mr D  ’s  employer.     He  values  Mr D    as  an employee and is willing to re-employ Mr D   if I grant him bail on the current charges.   The employer has provided an assurance to this Court that his firm will drive Mr D   to the defended hearing in Palmerston North on 2 May 2008.

[6]      I  have  also  heard  from  Ms  Skern  to  whose  address  it  is  proposed  that Mr D   be bailed.  She confirms that she is willing to have her address as the bailed address.

[7]      In view of the change of circumstances the appeal is allowed and bail is granted to Mr D  . The conditions of bail are:

a)        That Mr D   reside at 54 Lincoln Avenue, Tawa;

b)        That he is subject to a curfew between the hours of 9 pm and 7 am;

c)        That he not consume alcohol or enter licensed premises or consume non-prescription drugs; and

d)That he not associate with the complainant in relation to the charges to be heard in Palmerston North on 2 May 2008.

Mallon J

Solicitors:

P Young, Barrister, PO Box 5002, Wellington (email:  [email protected])

C Boshier, Luke Cunningham & Clere, PO Box 10357, Wellington (email: [email protected])