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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading F v Police

Details

AGLC: F v Police [2021] NZHC 1938
Case: [2021] NZHC 1938
Decision Date: 29 July 2021

CaseChat Overview and Summary

The case of F v Police involves an appeal by F, who seeks to vary a condition of his bail, specifically the requirement that he not have contact with his estranged wife except for Family Court proceedings. F has pleaded guilty to a charge of attempting to make an intimate visual recording, and his sentencing is scheduled for 10 August 2021. F's application to delete the bail condition was declined by the District Court, which considered there was no need for F to contact his former wife regarding supervised contact and rejected the submission that it had no jurisdiction to impose such a requirement as a condition of bail.

The legal issues the court was required to decide revolve around the appropriateness of the existing bail conditions after F has pleaded guilty, and whether the District Court Judge properly took into account the mandatory considerations prescribed by s 8 of the Bail Act 2000 when assessing the appropriateness of the bail conditions. The court also had to consider whether 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.

The court's reasoning and outcome focused on the fact that F had now pleaded guilty and accepted the facts of the offending, which meant that the risk of interference with witnesses was no longer an extant concern. The court found that there was no apparent need for F to directly contact his former wife, as there was no real need at present for such communication. The court noted that an order was made last week permitting a further 12 sessions of supervised contact between F and his child, and there was no need for direct communication between F and his former wife. As a result, the appeal was allowed, and the condition that F not have contact with his former wife except for the purposes of Family Court proceedings was deleted.

The final orders of the court were that the appeal is allowed, and the condition that F not have contact with his former wife except for the purposes of Family Court proceedings is deleted.

Orders