F v Police HC Auckland CIV 2007-404

[2007] NZHC 58

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-404-39

IN THE MATTER OF     an appeal against refusal of District Court bail

BETWEEN    F  

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         16 February 2007

Appearances: John Kovacevich for Appellant

Ross Burns for Respondent

Judgment:      16 February 2007

JUDGMENT OF HARRISON J

SOLICITORS

John Kovacevich (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

F V POLICE HC AK CRI-2007-404-39  16 February 2007

[1]      Mr  M    F    appeals  against  a  decision  in  the  District  Court  at Auckland on 9 February 2007 refusing to grant him bail on charges of threatening to kill and assaulting a female.

[2]      In summary, the police case is that Mr F   and the complainant lived together in St Lukes, Sandringham in January 2007.  Earlier, in December 2003, the complainant had obtained a protection order against Mr F  .  Plainly there has been a history of domestic discord.   On 7 January the parties allegedly argued. Mr F   stated his intention to kill the complainant and burn the house down. He is said to have pushed her in the face, causing her head to jolt backwards.  He then kicked the complainant’s car, causing a large dent, before escaping.

[3]      Judge Barry Morris found that Mr F   would present one or more of the mandatory risks if granted bail.  In particular, he was satisfied that, first, there was a risk that Mr F   would re-offend while on bail and, second, might interfere with the complainant.

[4]      I respectfully agree with the Judge.   However, with the benefit of careful argument  on  appeal,  I  am  satisfied  that  these  risks  can  be  alleviated  by  the imposition of strict conditions.   Mr Ross Burns for the Crown accepts that such a course is appropriate.   Also I am influenced by the reality that, if Mr F  ’s remand continues in custody, by the time of trial he will have served the same length or more than the term of imprisonment which might be imposed if he was found guilty of either or both charges.   That is an unacceptable result where the Crown bears the burden of proof and Mr F   enjoys the presumption of innocence.

[5]      Accordingly, I grant Mr F  ’s bail on condition that:

(1)He is to reside at [address], Avondale with Ms S  F , his former partner who is prepared to offer accommodation;

(2)He is to observe a curfew at that address between the hours of 11 pm and 7 am daily and to present himself at the door when requested by the police;

(3)He  is  not  to  associate  with  or  contact  the  complainant,  whether directly or indirectly, and is not to enter the street where she currently resides (Exeter Street, St Lukes) or any other address at which the

complainant lives.

Rhys Harrison J