Eriha v Police HC Napier CRI 2010-441-16

[2010] NZHC 1202

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2010-441-16

JAMES TE ARAWA ERIHA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 July 2010

(Heard at Wellington)

Counsel:         M Lillico for Appellant

M Snape for Respondent

Judgment:      15 July 2010

JUDGMENT OF SIMON FRANCE J (Appeal against Refusal to Grant Bail)

[1]      This is an appeal against a refusal to grant bail.  It is alleged that Mr Eriha is a senior member of a youth gang which operates in the Flaxmere area of Hastings.

[2]      It seems that a vehicle was stolen from a different local gang.  Why Mr Eriha was interested in this theft is not clear to me, but in any event he went to the work premises of a person to demand compensation.   Apparently the compensation that was being sought was this person’s vehicle.  An altercation ensued.  Although there

were several members of Mr Eriha’s gang present, it appears that the conflict was a

JAMES TE ARAWA ERIHA V NEW ZEALAND POLICE HC NAP CRI 2010-441-16  15 July 2010

one on one fight.  It is alleged that during the conflict, Mr Eriha took out a knife and stabbed the victim twice, one under the arm and once in the leg.

[3]      The charges that have been laid are aggravated robbery, wounding with intent to cause grievous bodily harm, and theft.  No doubt some of the charges will be in an alternative form once an indictment is laid.   The items eventually stolen were a mobile phone, a wallet, and a set of car keys.

Appeal decision

[4]      Mr Eriha was denied bail.   The Judge focussed on the strength of the case against him, and the fact of some previous offending on bail.  It was also noted there had been an offence of breach of community work.  Finally there was a reference to the police bail opposition form where two breaches of a previous curfew were noted. Both breaches appear to have resulted in warnings from the police, but no further action.

[5]      The primary opposition to bail, as it appears from the police opposition form, was as regard interference with witnesses.

[6]      I accept the appellant’s submission that, on this occasion, the Court did not focus sufficiently on whether the proposed bail conditions would adequately address the risks.  An address in the Hastings/Napier area would not have been satisfactory, but the proffered bail address was in Wairoa.  Unless Mr Eriha breaches his bail and travels to the Hastings area, his opportunity to personally interfere with witnesses is curtailed by that address as much as it is by him being in prison.  There appears to be a concern that gang associates may well seek to interfere with witnesses, but that risk exists whether or not Mr Eriha is in prison.

[7]      The offences previously committed on bail, as best as can be gleaned from the record, occurred in 2006 when Mr Eriha was 16 years of age.   He was at that time charged with unlawfully interfering with motor vehicles on four occasions over a three day period.  Somewhere within the four days he must have been admitted to bail, and the last of the offences occurred whilst on that bail.  Without diminishing

the significance of that, he was at that age only 16 and it was four years ago.  Since then he has been charged and convicted with other offences, and there is no record of any bail breaches.

[8]       This appeal was brought on at short notice from Hastings.  Local counsel for both  parties  had  filed  full  written  submissions,  and  Mr Lillico  and  Mr Snape appeared on instructions.  I conducted the hearing by initially inviting Mr Snape to advance the case why the proposed conditions did not adequately address the bail risks.   Mr Snape noted the points that could be made, but very properly recognised that the conditions appeared to address most of the concern.

[9]      In the circumstances I am well satisfied that bail should be granted on the conditions that have been proposed.  Accordingly I allow the appeal and grant bail on the following conditions:

a)        reside at 7 Chamberlain Avenue, Wairoa;

b)curfew from 7.00 p.m. to 7.00 a.m. with Mr Eriha to present himself at the door on request;

c)        not to associate directly or indirectly with the complainant, or any other police witnesses;

d)       not to associate with any known gang member;

e)        not to travel to the Hawkes Bay except:

i)        to attend on counsel;

ii)       to attend any Court hearing.

When travelling to the Hawkes Bay for that purpose, Mr Eriha is to carry with him proof of the appointment;

f)        not to consume alcohol or other non prescription drugs;

g)        to  report  to  the  Wairoa  police  station  on  Monday’s  and  Friday’s

between noon and 4.00 p.m.

Solicitors: M Lillico

Simon France J

M Snape, Luke Cunningham & Clere, P O Box 10357, Wellington, email:  [email protected]

A J S Snell, Barrister, PO Box 101, Hastings, email: [email protected]
Crown Solicitors Office, Napier