Elliot v New Zealand Police HC

[2005] NZHC 1837

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-0136

BETWEEN  [  ]  ELLIOT

Appellant

AND  NEW ZEALAND POLICE

Respondent

Hearing:         3 June 2005 Appearances: N Wintour for Appellant

K Glubb for Respondent Judgment:     3 June 2005

(ORAL JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 2213, Auckland Counsel:

N Wintour, PO Box, Auckland

[  ] ELLIOT V NEW ZEALAND POLICE HC AK CRI 2005-404-0136 [3 June 2005]

[1]    Mr Elliot has been charged with aggravated robbery and aggravated wounding arising out of an incident that occurred on the evening of 26 March 2005. The incident involved driving, there being an allegation that there was an attempt by Mr Elliot to engage another vehicle in a race whilst travelling along a road in West Auckland. A series of events followed that which have resulted in the two charges brought by the Crown.

[2]    There is a significant conflict in evidence between what is said to have occurred. The complainant, whose version is reflected in the summary of facts, alleges conduct which, if true, would put this offending into a very serious category; whereas the appellant asserts on oath a different version which would be likely to result in acquittal should it be accepted at trial.

[3]    Mr Elliot sought bail in the District Court at Waitakere on 4 April 2005. Bail was refused by Judge Tremewan. The Judge had concerns about the possibility of interference with witnesses and re-offending. The concerns about interference with witnesses were reflected in para [21] of her decision in which she expressed “real concerns about the safety of these complainants”.

[4]    Mr Wintour, for Mr Elliot, has challenged Judge Tremewan’s decision on the basis that she failed adequately to consider factors under s8 of the Bail Act 2000. He submitted that there was no real evidence of interference with witnesses. Nor, he submitted, could the Judge have had a sufficient basis to regard risk of re-offending as sufficiently significant to continue detention. He noted that Mr Elliot denied the allegations made. Depositions are to be taken in the District Court on 12 July 2005.

[5]    In answer to a question from me, Mr Wintour advised that there were two others persons in the appellant’s car. He has not been able to locate them and obtain information from them. Obviously, statements or affidavits from those persons would assist Mr Elliot in any application for bail if their version of events were consistent with his. However, the Court, when dealing with the original bail application, and this Court on appeal, is left with a vast gulf between the competing versions of events. The issue of bail must be considered in that context.

[6]    Mr Wintour also advances, in support of the bail appeal, the fact that Mr Elliot would have employment if released on bail. His parents are supportive of Mr Elliot and are prepared to provide a residence and have offered to go surety for Mr Elliot in a sum up to $10,000.

[7]    Mr Glubb, for the Crown, has pointed to a consistent pattern of offending, albeit some on a less serious scale over a relatively short period of time. Mr Elliot is now aged 25 years but has amassed convictions amounting to approximately 62.

[8]    Mr Glubb has also pointed out that while his parents are supportive, offending still occurred while Mr Elliot lived with them.

[9]    Mr Glubb submits that the District Court Judge’s decision, when read in its proper context, supports the view that the Judge was concerned about a potential violent disposition which gave rise to her concerns about interference with witnesses and the possibility of further offending. I regard that as an appropriate interpretation of the Judge’s decision.

[10]   The decision of the District Court on the original bail application resulted in a discretionary decision to decline bail. The question is whether that decision was  open to the Judge.

[11]   It is also necessary for me to review the position today separately because a surety is now offered. Accordingly, while I take the view that the Judge was right,  on the information before her, to refuse bail, I must reconsider that issue today.

[12]The significant factors in my assessment of bail are these:

a)While I accept the genuine desire of Mr Elliot’s parents to assist him,  I must take account of the fact that while he lived for some five years with them, he appears to have amassed at least 15 convictions on a variety of offences.

b)Those offences, while to some extent of nuisance value, in some respects do demonstrate the progression of a violent disposition based,

possibly, on anger. I note that in 2001, Mr Elliot was charged and convicted of possession of an offensive weapon and was also convicted on a similar offence in 2002. There have been various convictions for disorderly behaviour, one for common assault, one for fighting in a public place and another for possession of an offensive weapon in 2004. Also significantly, in the context of the present allegations there are convictions in 2001 for breath alcohol and dangerous driving.

[13]   Those factors suggest to me that the proliferation of offending gives rise to a real risk of further offending. The care and concern that his parents have provided to him does not appear to have deterred Mr Elliot in the past. And past behaviour is often a good predictor of future behaviour.

[14]   I do not consider, on the information before me, that the risk to his parents of losing a substantial sum of money is likely to deter Mr Elliot further.

[15]   I accept that there are critical factual issues to be determined at trial.  Many  of those issues can be tested at the preliminary hearing to be held in July and if there is independent evidence to support Mr Elliot, I would have thought that that would  be readily available through his associates who were present. The only reason they could have for declining to assist their associate would be if they considered they may be at risk of prosecution themselves.

[16]   For those reasons I am satisfied that hail was properly refused in the District Court and that it remains inappropriate to grant bail now.

[17]   The appeal is dismissed. However, I consider the question of bail as one that could properly be revisited after the preliminary hearing on 12 July 2005.

P R Heath J