Ellis v Police HC Palmerston North CRI 2010-454-25

[2010] NZHC 1413

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2010-454-25
CRI-2010-454-26
CRI-2010-454-27
CRI-2010-454-28
CRI-2020-454-29
CRI-2010-454-30

CRI-2020-454-31

AARON PATRICK JOHN ELLIS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 August 2010

Counsel:         Appellant in person

S Johnston for respondent

Judgment:      5 August 2010

RESERVED JUDGMENT OF DOBSON J

[1]      At short notice this morning, I heard an appeal from a refusal to grant bail, as decided in the Palmerston North District Court on 6 July 2010.

[2]      Mr Ellis’s entitlement to bail has a protracted history.  On 3 February 2010, he was bailed in the Levin District Court by His Honour Judge Lynch, when he first

appeared on a charge of breach of a protection order.  The protection order had been

ELLIS V NEW ZEALAND POLICE HC PMN CRI-2010-454-25  5 August 2010

made some years previously in favour of Mr Ellis’s then partner, who is the mother of two children they had together.  For a significant period of time, they cohabitated, ignoring the protection order.   However, following a separation initiated by the partner, she sought to rely on it when Mr Ellis behaved threateningly in respect of her.

[3]      Judge Lynch apparently issued a warning as to strict compliance with the bail terms,  when  that  was  granted  on  3  February  2010.    However,  on  12,  13  and

14 February 2010, Mr Ellis was noted as being absent from the address to which he was bailed in Levin.  A warrant was issued for his arrest on 17 February 2010 and the Police claim that he took active steps to evade them until handing himself in to the Police on 18 March 2010.

[4]      Mr Ellis appeared in the Levin District Court on 18 March 2010, facing fresh charges for breach of the protection order and threats to kill.  Bail was declined and an appeal to the High Court was declined on 26 May 2010.   Since then, a further application for bail was made to the District Court, but that was declined on 6 July

2010 by His Honour Judge Fraser.  This appeal is from that decision.

[5]      Mr Ellis complains that Judge Fraser has had too much to do with him in recent years, in the context of Family Court and other proceedings, to the point that Mr Ellis complains that the Judge is predisposed or biased against him.   He has purported to make application preventing Judge Fraser from presiding at any matters in which he is involved, and has flagged that he has pursued a complaint in respect of that Judge’s conduct to the Judicial Complaints Commissioner.

[6]      I have  considered  afresh  all  of  the  grounds  that  Mr Ellis  has  set  out  in thorough written submissions on his own behalf, in support of bail.  Having reached my own view on the merits on each of these considerations, I am unable to see any grounds for criticism of Judge Fraser’s dealing with the matter as being other than on the merits of the issues as they were before him.

[7]      Further,   although   there   are   differences   of   emphasis   in   the   various considerations raised in support of bail, I am also not persuaded that any of these

have changed materially since considered by Simon France J.  Consequently, I am not satisfied that there were sufficient fresh circumstances to warrant the further application pursued before the District Court in early July.  Notwithstanding that, I will briefly set out my own assessment of each of the considerations Mr Ellis urged upon the Court, in support of bail.

[8]      Mr Ellis claims that with an adequate opportunity to prepare his defence, he can establish how weak the charges are, and subsequently defend them.  He asserts that they result from manoeuvring by the complainant, aided by his brother, designed to keep him in custody and therefore frustrate his attempts to contest care and control of the couple’s children, and also to frustrate progress with civil proceedings he has against his brother in relation to certain horses.  He also asserted this morning that the Police are complicit in these initiatives, because they want him “out of the way” of work the complainant is doing for them.

[9]      Mr Ellis acknowledges his hot-headed reactions and threats in the period when he was first bailed, but claims that the very high levels of stress and frustration at his domestic situation contributed to this conduct.   He claims that he now both accepts that the domestic relationship is entirely at an end, and also that he must keep control over his conduct or otherwise he will make matters worse for himself in the challenges he has ahead of him.  He argues that the complainant no longer has any need for protection from him, and that there is no risk of either contact with her, or flight by him.

[10]     He argues that the preparation of his defence and work on other litigation he has on-going is rendered impossible by his being in custody.  He says that he cannot effectively prepare at all, and for example cites criminal disclosure having been provided by the Police by way of a DVD that the Prison authorities will not let him view.    At  the  moment,  Mr Ellis  is  self-represented.    He  acknowledges  having difficulties relating to lawyers who have previously acted for him, and there is some prospect of an amicus being appointed for, at least, the most serious of the criminal charges.   As he will be unable to cross-examine the complainant in the breach of protection order charges, an amicus seems inevitable.

[11]     Mr Ellis urges reconsideration of these difficulties for him, particularly in light of the greater length of time he has spent in custody, and is likely to spend before all the present charges can be resolved.  He has now been in custody for some

20 weeks and trials on the matters on which he is remanded in custody are not yet set down.

[12]     He is also desperate to maintain some measure of contact with his children, having seen them for only one hour since 20 January 2010.   He has numerous concerns that the mother of the children (the complainant in the breach of protection order and other charges) is not caring properly for the children.  He argues that the longer he remains in custody the more difficult it will be for him to re-establish any normal contact with the children, as an aspect of a credible claim in Family Court proceedings to participate more in their lives.  He considers the complainant is unfit to care for the children.

[13]     He offered three alternative addresses, the one preferred by him is that of the woman he identifies as his “McKenzie friend”, Tracey Chandler.  Although she has now  resolved  criminal  matters  that  were  outstanding  when  Simon  France J considered the prospect of bailing to that address, I have similar reservations about the appropriateness of that address.

[14]     The Police continue strenuously to oppose bail.  They urge that under s 8(5) of the Bail Act 2000, the Court’s paramount consideration must be the need to protect the victim of the alleged offences under the Domestic Violence Act 1995. Mr Ellis and the complainant remain diametrically opposed.   There may well be something in the claims he makes of provocation by the complainant, and overstatement by her of the extent of his threatening behaviour.  However, it cannot be dismissed and significantly in the District Court on 6 July 2010, the Court was confronted with serious threats made by Mr Ellis against that complainant.  Her fears cannot be dismissed, and Mr Ellis’s assurances of a changed attitude, in light of that conduct at the beginning of July, are not sufficient to erase the real prospect of a repetition of the allegedly criminal behaviour that occurred when he was bailed in February.  Accordingly, I consider that factor goes a substantial distance on its own to constituting just cause for Mr Ellis’s continued detention.  It is allied to concerns

under  s 8(1)(a)(ii)  and  (iii)  that  Mr Ellis  is likely to  interfere  with  witnesses  or evidence, and that he may offend again whilst on bail.  Ms Johnston submitted that the totality of his criminal record, and recent behaviour since February this year mean that realistic concerns of flight and interference are clearly present.

[15]     I do not dismiss out of hand his assurances that he is now focused, and can appreciate that, for him, a whole lot of adverse circumstances have spiralled out of control.  However, these risks are cumulatively determinative.

[16]     I am  concerned  that his remand  in custody ought not  to be longer than necessary.  Ms Johnston assures me that the Police will be ready to proceed as soon as his defence is in order, and that priority will be given to allocation of a fixture.  I have urged Mr Ellis strongly to also turn over a new leaf in the nature of his dealings with  lawyers  retained  to  act  on  his  behalf.     I  urge  him  to  find  and  work co-operatively with counsel, because that is likely to facilitate earlier trial dates.

[17]     To the extent that Mr Ellis continues to do work or contribute to work on his defence, I also direct that the Corrections staff dealing with him in Manawatu Prison take all reasonable steps available to them to facilitate work that genuinely relates to preparation of his defence.

[18]     The present appeal is dismissed.

Dobson J

Solicitors:

Crown Solicitor, Palmerston North

Copy to:

A P J Ellis, c/- Wanganui Prison