Donnelly v Police HC Wellington CRI 2010-454-1

[2010] NZHC 253

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI - 2010-454-1

JOSEPH QUINTIN DONNELLY

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 February 2010

Counsel:         C Tennet for Appellant

P L Murray for Crown

Reserved Judgment:   8 February 2010

RESERVED JUDGMENT OF JOSEPH WILLIAMS J

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 11.00 am on the 8 February 2010.

[1]      The appellant, Joseph Quintin Donnelly is charged with two counts of rape. The alleged offences occurred on 3 December 2008 in Palmerston North.   The appellant’s defence is consent.  He was bailed to Gisborne on 22 December 2008 but was arrested for breach of bail and came before His Honour Judge Lynch in the District Court on 1 December 2009.

[2]      The appellant’s arrest on that occasion appears to have arisen because of an ambiguity expressed in the conditions relating to bail address.  The police suspected

DONNELLY V NEW ZEALAND POLICE HC WN CRI - 2010-454-1 8 February 2010

that  the appellant  was spending time at  addresses other  than  the two addresses contained in the bail conditions, and suspected further that he had been engaged in criminal  activity  with  other  gang  members.    These  were,  as  the  learned  Judge pointed out, suspicions and allegations.  No charges were brought in respect of these matters.

[3]      Judge Lynch looked to the terms of s 10 of the Act which applied to the appellant in this case.   Primary considerations for him were therefore the need to protect the safety of the public and of the victim (s 10(6)).   He had also to be satisfied on the balance of probabilities that the appellant would not commit any offences involving violence against or danger to the safety of any other person while on bail.  The learned Judge concluded that:

While   there   are   rumours   and   informant   information   swirling   about Mr Donnelly, in the absence of charges and concrete information that can be tested, there is little weight that can be properly placed on that. [para 14]

[4]      The learned Judge then considered the matters set out in s 8.  He concluded that there was no reason to believe the appellant would fail to answer bail, or that he would interfere with witnesses or evidence.  He having been on bail for a year at that stage  already  without  further  charges  (allegations  notwithstanding),  the  learned Judge concluded that there was insufficient risk of further offending while on bail to justify refusal.

[5]      The Judge then considered the factors in s 8(2) and again set them all aside as being insufficient to decline bail.

[6]      Bail was accordingly granted on the following terms:

(a)       Reside at 16 Belfast Street, Gisborne;

(b)      To be subject to a curfew at that address between 8.00 pm and 8.00 am daily;

(c)       Not to enter licensed premises other than supermarkets and dairies; (d)      Not to consume alcohol;

(e)       Submit to any breath/analyser test requested by any constable;

(f)Not to enter or be in R  Street, Gisborne (for the avoidance of any doubt, not to be at ** R  Street, Gisborne);

(g)       Not to associate or be with any Mongrel Mob members, except while at league and touch games at Kaiti Bowl (next to Kaiti Mall) Mondays, Wednesdays and Fridays between 3.00 pm to 6.00 pm and at scheduled games in the Gisborne area (proof of which will be on Mr Donnelly);

(h)      Not to wear gang regalia or insignia;

(i)       Not to contact or communicate directly or indirectly with EO , BL  and any other Crown witness in any way;

(j)        Not to be in the Palmerston North area unless attending Court when directed to do so;

(k)       The curfew is to commence from midnight 1 December 2009.  Until Mr Donnelly commences his return trip to Gisborne he is to be at and remain at 20 Jackson Avenue, Palmerston North.

[7]      Shortly thereafter, on 13 December 2009, it is alleged that the appellant breached the non-association condition (g).

[8]      In  an  affidavit  sworn  four  days  later  on  17  December  2009,  Constable Slomen deposed that he knew the appellant by sight and that on 13 December 2009 he saw him playing tennis on a tennis court by the beach in Gisborne while three patched Mongrel Mob members stood at a picnic table next to the court.   He recognised one of the members as Matthew Rowe.  Rowe was not wearing his patch at the time.   Later the appellant and Rowe engaged in a number of discussions according to the constable.

[9]      The   constable   said   further   that   on   17   December   2009   the   police communications centre in Wellington received a phone call from an informant to the effect that the appellant was outside the London Street dairy in Gisborne talking to Mongrel Mob members.   At that point, it was deposed, the constable checked the appellant’s bail conditions and realised that discussions of this nature would breach condition (g).  The appellant was then arrested and taken into custody.  He appeared before His Honour Judge Atkins QC on 22 December 2009.

[10]     The appellant wrote a letter to the learned Judge.   That letter set out the appellant’s position on the question.   He accepted that he was at the beach, but

denies associating with Mongrel Mob members.  He says he played tennis and went for a swim with a non-Mongrel Mob associate and otherwise spent time with his family there.   He said that on the day in question police and their families were having a Christmas picnic on the beach, that he was aware of the non-association condition, and that to associate publicly with Mongrel Mob members in front of 20 police officers was too stupid for him to have done it.

[11]     In his decision, Judge Atkins QC considered and compared the evidence of Constable  Slomen  and  Mr  Donnelly  and  concluded  that  Constable  Slomen’s evidence was to be preferred.  He said that the constable’s evidence contained:

… the sort of detail that suggests accuracy:   for example his reference in paragraph  14  to  Mr Rowe  and  Mr  Donnelly  facing  each  other,  talking, occasionally going into the water, and then Mr Donnelly facing Mr Rowe again, standing with arms wrapped around him as if he was cold.   This contains a degree of detail, which to me suggests that the account is one of an event which the officer observed. [para 16]

[12]     The  learned  Judge,  on  being satisfied  that  a  breach  of  bail  had  actually occurred on 13 December 2009 (he makes little of the dairy incident four days later), then went on to consider whether bail should be declined.  He concluded:

The failure to abide by [the conditions of bail], in my view, is serious and raises  doubts  about  [the  appellant’s]  ability  to  comply  with  restrictions placed on him.  [para 27]

[13]     The learned Judge was however concerned at the length of time the appellant would spend in custody.  The appellant was therefore remanded in custody until the next callover on 8 February.  After that, presumably the application for bail could be renewed.

[14]     There were two live issues before me.   The first was the factual dispute between Mr Donnelly and Constable Slomen as to just what transpired at the beach in Gisborne.  Both sides filed extra evidence for my consideration.

[15]     The second related to the proportionality of refusing bail in light of the breach if it was proved.   Here the appellant argued that, even if there was communication between the appellant and Mr Rowe, the exchange was minor and could not justify the practical result of many months in prison prior to trial.

[16]     On the view I have taken of the second issue, it is unnecessary for me to address the first one.

[17]     In my view, even if the breach of condition (g) was proved (and I accept that it was), refusal of bail on that ground alone was disproportionately harsh.  While two or three conversations between Rowe and the appellant, combined with the general presence of other patched members in the vicinity clearly breach condition (g), this on its own is insufficient to justify keeping the appellant in jail.   In my view the week or so of incarceration between the appellant’s initial arrest and his appearance on 22 December 2009 before Judge Atkins QC was a proportionate response to the seriousness of the breach.  I do not wish to be taken to mean that informal delays in processing bail applications are to be encouraged as alternative forms of punishment for breach of bail.  Far from it.  Rather my point is that, in this case the appellant had spent eight days in custody as a matter of fact.  In my view that should have been enough.

[18]     Beyond that, further incarceration would need to be on some other basis.  I did not take the Crown to be relying on anything other than the beach incident in its case before Judge Atikins QC, and the learned Judge’s reasons are confined to that issue.

[19]     As His Honour Judge Lynch noted, the appellant had up until that time been on bail for a year and although there were allegations of involvement in criminal activity, nothing had come of them.  Although I might have taken a different view, the fact is those allegations were not before Judge Atkins QC or me on appeal so they must be set to one side.  That leaves only the beach incident, and as I say that insufficient.

[20]     The appeal is therefore allowed.   The appellant will be granted bail on the conditions  imposed  by His  Honour  Judge  Lynch  on  1  December.    Any further breaches will no doubt be treated harshly.

[21]     The proceeding is to be called again in Palmerston North on 8 February 2010 and the appellant is based in Gisborne.  Practical logistics mean it makes sense, as

suggested by Mr Tennet, that the appellant be released on 8 February to appear in

Palmerston North before returning to Gisborne.   The appellant’s release is to take effect on that date accordingly.

Solicitors:

Ponsonby Chambers, PO Box 12456, Wellington 6144

Ben Vanderkolk and Associates, PO Box 31, Palmerston North

“Joseph Williams J”