E v Police HC Christchurch Cri-2007-409-119

[2007] NZHC 1837

This case has been anonymized

NOT TO BE PUBLISHED UNTIL FINAL DISPOSITION OF HEARING

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2007-409-000119

E

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 June 2007

Counsel:        E H Parsons for Appellant

Z R Johnston for Respondent

Judgment:      14 June 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      This is an appeal against refusal of bail in the District Court.  The appellant was initially charged in relation to allegations pertaining to 2 May.  These were that he breached a protection order by physically abusing his partner.  In addition there was a charge of assault.   These allegations related to an alleged incident  which occurred in Riccarton Road, outside commercial premises and which resulted in the complainant going to a nearby WINZ office from which the police were called.

[2]      It is an important aspect of the case and central to the argument advanced by

Mr Parsons this morning that the appellant was bailed following his arrest on those

E V NZ POLICE HC CHCH CRI-2007-409-000119  14 June 2007

two charges.  A condition of bail was that he was to reside at 156 Avonhead Road, the home of his brother.  He duly went there.

[3]      The evidence indicates that the complainant made contact with the appellant, or  if  she  did  not  do  that,  at  the  very  least  she  willingly  went  with  him  to

156 Avonhead Road on 4 May and remained there until 8 May.  Arising out of that period there are further charges of breach of the protection order, assault, threatening to kill relating to 4 May; similar charges referable to 7 May and again, further similar charges referable to 8 May.  The allegations include contentions that the complainant was punched in the face on the first two days and on the third day that she was assaulted in the shower with the result that a panel in the shower was broken and, then, that she was threatened with a dumb-bell.  It is also said that throughout this period she was without means of communication, a cellphone having been removed from her and threats were made that were she to leave, she would be killed.

[4]      The case came before Judge Costigan.  She concluded that s12(1)(b) of the Bail Act applied and hence that there was an onus upon the appellant to demonstrate that if readmitted to bail he was a safe risk with reference to offences of violence. The  Judge  was  not  satisfied  the  onus  was  met  and  accordingly  remanded  the appellant in custody.

[5]      I note, as well, that s8(4) of the Bail Act applied, namely that because there were allegations of breach of a protection order, the need to protect the victim of the alleged offending was a paramount consideration.

[6]      There is no argument with the proposition that this was a case involving a reverse onus.  Rather, the contention was that the onus was met.  It seems to me the appeal was presented on the footing that I was to look at the circumstances de novo, rather  than  in  terms  of  my  function  to  examine  the  decision  of the  Judge  and determine whether the discretion was wrongly exercised.  I do not consider it was. Indeed, were the decision mine I would have reached the same conclusion as did Judge Costigan for what seems to me to be the very good reason there is a genuine risk in this case of the complainant placing herself within the sphere of the appellant again, and a risk of further harm, indeed of something worse befalling her.

[7]      For completeness I note that up-to-date information from the complainant is available.   She remains opposed to bail and I must take that into account.   I note, also, that the case is presently scheduled for a further status hearing on 18 June after which it should proceed to a fixture and be accorded such priority as is possible given the nature of the charges and the appellant’s present remand status.

[8]      For all these reasons I am far from satisfied that the decision below was a wrongful exercise of discretion and the appeal is dismissed.

Solicitors:

Errol Parsons Barrister, Christchurch for Appellant
Raymond Donnelly & Co, Christchurch for Respondent