F v Police

[2021] NZHC 1938

NOTE: PUBLICATION RESTRICTIONS APPLY PURSUANT TO S 19(1) OF THE BAIL ACT 2000. SEE

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2021-425-14

[2021] NZHC 1938

BETWEEN

F

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

27 July 2021

Appearances:

R J Little for Appellant

S N McKenzie for Respondent

Judgment:

29 July 2021

Reissued:

28 September 2021

Effective date of Judgment:

29 July 2021

JUDGMENT OF MANDER J

This judgment was delivered by me on 29 July 2021 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

F v POLICE [2021] NZHC 1938 [29 July 2021]

[1]                  F appeals a decision of Judge Turner declining his application to vary a condition of his bail, namely, to remove the requirement that he is “not to have contact with [his estranged wife] except for the purposes of Family Court proceedings”.1

[2]                  F has pleaded guilty to a charge of attempting to make an intimate visual recording after having been provided with a sentence indication of supervision and reparation.2 That charge involved offending against an employee of F who was not related to either himself or his former wife. It is understood his wife was to give evidence regarding admissions that F made about the offending. His sentencing is scheduled to take place on 10 August 2021.

[3]                  F and his former wife are engaged in Family Court proceedings regarding their son. As a result of the current criminal proceeding, F’s contact with his family is limited to supervised contact with his son at an independent supervising provider’s premises. F seeks the variation in order to allow him to have contact with his estranged wife because, he says, of the need to communicate with her over childcare issues and, in particular, the supervised contact arrangements.

[4]                  The Police oppose the variation. It appears that opposition is primarily, if not solely, based on the views expressed by the former wife, who has made it clear that she does not want any contact with her ex-husband. F’s application to delete the bail condition was declined by the District Court. It considered there was no need for F to contact his former wife regarding the supervised contact and rejected the submission that it had no jurisdiction, despite F’s guilty plea, to impose such a requirement as a condition of bail.

[5]                  In support of F’s appeal, Mr Little submitted the District Court Judge had failed to properly take into account the mandatory considerations prescribed by s 8 of the Bail Act 2000 (the Act) when assessing the appropriateness of the existing bail conditions now that F has pleaded guilty. Counsel submitted that Judge Turner had placed excessive weight on the fact the former wife did not want contact with her estranged husband. Mr Little stressed the importance of there being a reasonable

1      Police v F DC Invercargill CRI-2021-025-53.

2      Crimes Act 1961, ss 216H and 72.

nexus between the Court’s discretion when imposing terms of bail and the risks associated with the defendant being admitted to bail, and that the current Family Court proceeding was an irrelevant consideration. With F having now pleaded guilty and accepted the facts of the offending, it was submitted the risk of interference with witnesses is no longer an extant concern and that the removal of the condition not to have contact with a witness is now unreasonable.

[6]                  In opposing the appeal, Ms McKenzie submitted the District Court Judge was entitled to decline to delete a non-association clause under the exercise of his discretion under s 13 of the Act, which governs the approach to be taken by the Court to issues of bail after a defendant has pleaded guilty. It was submitted that wider considerations of the interests of justice prevail and that, because sentencing was only two weeks away and supervised contact arrangements in place, maintenance of the status quo in the interim was preferable. Ms McKenzie argued that conditions could be imposed in relation to a sentence of supervision that could include continued non- association and that the Court had been correct to take into account the views of the appellant’s former wife.

[7]                  Issues relating to bail after a defendant has pleaded guilty or been found guilty are regulated by s 13 of the Act. Subsection (3) provides as follows:

13       Exercise of discretion when considering bail pending sentencing

…

(3)When considering the interests of justice under subsection (1), the court may, instead of the considerations in section 8, take into account the following considerations:

(a)whether the defendant is likely to receive a sentence of imprisonment:

(b)the likely length of time that will pass before the defendant is sentenced:

(c)the personal circumstances of the defendant and the defendant’s immediate family:

(d)any other consideration that the court considers relevant.

[8]                  Despite the arguable indication to the contrary in subs (3), s 8 considerations are still relevant to the post-conviction situation and both this Court and the Court of

Appeal have made observations to that effect.3 Similarly, the need for there to be a linkage between the imposition of a bail condition and a perceived risk of admitting a defendant to bail has been emphasised by the courts on numerous occasions.4 It follows that the continuation of the non-association condition relating to F’s former wife is required to be assessed against the particular concern that it seeks to manage. With F now having pleaded guilty that purpose is not readily discernible, at least as it relates to the criminal proceeding.

[9]                  There may be good reason for extending a non-association condition in favour of a witness after a defendant has pleaded guilty, particularly so where that person is the victim of the offending, or where they have a role in the sentencing process that is to follow the defendant’s conviction. There is no doubt the Court retains its jurisdiction to impose or maintain such conditions. However, it is not apparent that this is one of those situations where good reason for extending the condition exists.

[10]              Ms McKenzie argued that there remains an extant name suppression application that may cause F to reconsider his plea, but I do not consider a decision adverse to F in respect of that issue could realistically lead him to successfully challenge his plea. Nor is it apparent from the circumstances of the offending, which does not involve either the former wife or any other family member, that any condition of a sentence could foreseeably include a prohibition that F not contact her when she had no involvement in the events that constituted the offending.

[11]              The reason F puts forward to challenge the existing condition is to allow him to communicate with his former wife should that be necessary. Mr Little referred to a recent situation where F and his sister (an approved supervisor) had made arrangements to collect the child which involved travelling some distance into the countryside. Unbeknownst to F, his former wife had understood that the child was to be dropped off in the town where he resides. Complications resulted which, it was suggested, would have been avoided had the condition not been in place. Despite that

3      Webb v Police HC Tauranga CRI-2005-463-65, 23 September 2005 at [14]; R v Leone [2009] NZCA 325, (2009) 24 CRNZ 231 at [6]; Williams v R HC Auckland CRI-2007-404-6, 15 November 2007 at [6].

4      Boggs v Police [2006] NZAR 193 (HC); MacInnes v Police [2012] NZHC 3048 at [28]; R v Fatu

[2005] 22 CRNZ 524 (CA) at [7].

experience, I doubt there is any real need at present for F to directly contact his former wife. Clearly, it is her preference that he does not. Having made that observation, I note the present conditions, somewhat ambiguously, provide that he is not to do so “except for the purposes of Family Court proceedings”.

[12]              I am unable to perceive any justification for the continuation of the non- association condition given the present state of the criminal proceeding. Such a condition, of course, has no role in managing the relationship between F and his former wife for the purpose of the current Family Court proceedings. The appeal must therefore be allowed. However, that conclusion is in no way an endorsement of the apparent view expressed by F that he may be justified in contacting his former wife. To the contrary, there is no apparent need to do so. As Judge Turner observed, an order was made last week permitting a further 12 sessions of supervised contact between F and his child, and there is no need, in light of that order, for there to be any direct communication between himself and his former wife. As also noted by the Judge and emphasised by Ms McKenzie, F is legally represented in respect of the Family Court proceeding. If a need arises, he can contact his counsel who in turn can contact his former wife’s lawyer and/or lawyer for child should issues arise concerning the exercise of contact.

Result

[13]              The appeal is allowed. The condition that F not have contact with his former wife except for the purposes of Family Court proceedings is deleted.

Solicitors:

Eagles Eagles & Redpath, Invercargill Crown Solicitor, Invercargill