F v Police HC Rotorua CRI 2008-463-5

[2008] NZHC 44

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2008-463-000005

F

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 February 2008

Appearances: M J Hine for Appellant

F Pilditch for Respondent

Judgment:      4 February 2008

(ORAL) JUDGMENT OF ANDREWS J [Appeal against refusal to grant bail]

Solicitors:           Crown Solicitor, PO Box 740, Tauranga

M J Hine, PO Box 7426, Te Ngae, Rotorua

[1]      Mr F   appeals against the refusal to grant bail in a decision of District

Court Judge McGuire given in the District Court at Tokoroa on 13 December 2007.

F V NZ POLICE HC ROT CRI 2008-463-000005  4 February 2008

He also appeals against the decision of District Court Judge Geoghegan given in the District Court at Rotorua on 20 December 2007, in which the Judge refused to reconsider the matter of bail.  It is however the decision of Judge McGuire that is the focus of this appeal.

[2]      The appellant currently faces charges of driving while disqualified, breach of a protection order and wilfully attempting to pervert the course of justice.

[3]      All three charges have their background in the appellant’s relationship with his  former  partner.    The  driving  charge  was  laid  when  it  was  alleged  that  the appellant had driven in breach of a disqualification order in order to pick up and return their two children for an access visit in July 2007.   That offence is denied and there are statements on file from two persons to the  effect  that  they drove  the vehicle: one of them to the address, and the other from it.

[4]      The charges of breaching a protection order and attempting to pervert the course of justice arose out of an incident that occurred on 13 December 2007 outside the District Court at Tokoroa, when the appellant was to appear for a defended hearing on the driving charge and on charges of male assaults female and misuse of a telephone.

[5]      It  is  alleged  that  outside  the  Court,  and  before  Court  commenced,  the appellant approached his former partner and another person, both of whom were to appear as prosecution witnesses, and said, “You’re lucky I don’t slit your throat right now.   I know where you live and I’m going to get you buried both you and the whore” (that being reference to his former partner).

[6]      It is also alleged that the appellant had earlier said, “You’re dead” to the person who was with his former partner.

[7]      It is relevant to note first that the hearing scheduled for 13 December 2007 did not proceed.   I am advised by counsel for Mr F   that this was because a certificate of disqualification was not available.

[8]      Secondly, on 21 January 2008 the appellant changed his plea to the assault and misuse of telephone charges to guilty and was sentenced to supervision for six months with special conditions relating to anger management and relationship counselling.

[9]      In refusing bail on 13 December 2007, Judge McGuire noted that the charges that had been due to be heard that day related to threatening text messages which appear (so far as I can see) to have been along broadly similar lines to what the appellant was alleged to have said outside the Court.   The Judge noted also that while exercising caution, because in a relationship break-up people may often say things in a hot-headed fashion that are regretted immediately, or soon thereafter, the text messages had dated from July 2007 with the present allegations arising some six months later.  That repetition was of concern to the Judge.

[10]     Accordingly, the Judge concluded that there was a real and significant risk that the appellant would interfere with witnesses or other evidence (s 8(1)(a)(ii)), and that  there  was  a  real  and  significant  risk  that  he  would  offend  while  on  bail (s 8(1)(a)(iii)).

[11]     The appellant then appeared before Judge Geoghegan on 20 December 2007 on an “eight-day remand”.   Judge Geoghegan was invited to reconsider bail but declined to do so, expressing the view that if the appellant wished to challenge Judge McGuire’s decision the proper way to do so is by way of an appeal.

[12]     I understand from Mr Hine that a further application was made for bail when the appellant appeared before Judge McGuire on 21 January 2008.  The Judge did not reconsider the  issue  of  bail.    I am  advised  this  was  because  of the  appeal currently before this Court.

[13]     The appeal is on the grounds that the refusal to grant bail was unreasonable in all the circumstances, and wrong in law.

[14]     On behalf of the appellant Mr Hine submitted that the appellant strenuously denies the charges relating to the incident on 13 December 2007.  He accepts there

was a conversation but says it was brief and related to his wish to see his children. Mr Hine also referred to the appellant’s denial of the driving charges.

[15]     He then submitted that the Police opposition to bail was inflammatory and lacking in objectivity.  It amounts to no more, he submitted, than to note that since the relationship broke down there has been “unhappiness” as to the care of the children, that a protection order had been granted, that in July 2007 there had been an incident that had led to charges, and that further allegations had been made following that incident in December 2007.

[16]     Mr Hine also submitted that the allegations as to 13 December 2007, even if proved, would not support the serious charge of wilfully attempting to pervert the course of justice.

[17]     Mr Hine then submitted that there had been a change of circumstances since bail was refused.   This was that the appellant had pleaded  guilty to (and  been sentenced on) the charges of male assaults female and misuse of a telephone.  The imposition of a sentence of supervision, with special conditions, rather than the more serious sentences that would have been available to the Judge indicated, Mr Hine submitted, that the appellant’s behaviour was not considered as serious enough to warrant a more serious sentence.

[18]     Finally, Mr Hine submitted that conditions could be imposed that would serve to protect the complainant and would deal adequately with any risk of interference or offending.

[19]     On behalf of the Crown Mr Pilditch submitted that it had not been shown that the District Court Judge erred in any respect in refusing bail on 13 December 2007. It is necessary as a first step on any bail appeal that it be shown that the Judge made an error or law, failed to take into account all relevant matters, took into account irrelevant matters or was plainly wrong.  Mr Pilditch submitted that none of those had been shown.

[20]     Further, Mr Pilditch submitted there had been no change of circumstances vis-à-vis the risks of interference with witnesses or offending while on bail, that were of concern to the Judge when he refused bail.   The appellant’s change of plea, subsequent conviction and sentencing in January 2008 served only to confirm the risk that the Judge had seen.

[21]     Mr Pilditch submitted that a matter that is of concern to the Courts is that of the length  of  time until  trial.    In  this  case,  Mr  Pilditch  submitted,  this  can  be managed by the lower Courts.   In particular, where an accused is in custody it is possible to arrange for an earlier hearing than might otherwise be the case.  Even so, Mr Pilditch acknowledged that a hearing was possible by the middle of this year but unlikely to be any earlier.

[22]     Mr Pilditch also submitted that an allegation of intimidation of a witness, in the precincts of the Court, would be taken seriously if those allegations were proved. In the event of a conviction the Court would be invited to treat the matter seriously because of those circumstances.  However, he acknowledged that there had been no actual violence.

[23]     As I said earlier, a challenge on appeal to a bail decision is an appeal against the exercise of a discretion.  The appellant must show that the Judge made an error of principle, failed to take into account all relevant matters, took into account irrelevant matters or was plainly wrong.

[24]     In the present case the appellant under s 7(5) of the Bail Act 2000, while not bailable as of right, was to be released by a Court on reasonable terms and conditions unless the Court was satisfied there is just cause for continued detention.   Under s 8(1)(a) of the Bail Act the Judge was required to be satisfied that there were real and significant risks of the stated eventualities before declining bail. There is of course a presumption, under s 7(5) of the Bail Act, that an accused person must be released on reasonable conditions unless there is just cause for continued detention. He is entitled to the presumption of innocence.

[25]     As to whether the Judge made an error of principle, or in consideration of relevant or irrelevant factors, Mr Hine submitted that the Judge had wrongly suggested that the adjournment of the hearing on 13 December 2007 was caused by the incident that had occurred outside the Court.  I accept that the adjournment was granted because the Prosecution was not in a position to proceed on that day.

[26]     However, I do not take it, from Judge McGuire’s decision, that the question of what led to the adjournment on 13 December 2007 was one that was a particular influence in his decision to refuse bail.  What was of concern to the Judge were the matters with which the appellant was charged and were to have been heard on that day, and the similarity of what had been said in the text messages and what was alleged to have been said on 13 December 2007.   The Judge properly noted the cautions to be exercised when there is a relationship break-up but was, as he said, “intensely” worried that what had been said in July was similar to what was alleged to have been said six months later.

[27]     Mr Hine also submitted that the Judge was in error in his assessment of the risk  of  interference  with  witnesses.    The  Judge  assessed  it  as  being  real  and significant and therefore not a risk that could be managed by conditions of bail.   In support of this submission Mr Hine noted that there had been no breaches of bail (at least since 1998), there had been no approaches to the complainant prior to the appearance  on  13  December  2007  and  that  all  there  was,  in  respect  of  the  13

December incident, was an allegation as to what was said.  This was unsubstantiated, Mr Hine said, by any independent evidence.  On that basis Mr Hine submitted that the Judge had erred in assessing any risk of interference as being real and significant.

[28]     Mr Hine further submitted that the Judge erred in that he did not consider whether the risk could be managed by appropriate conditions of bail.  There is no indication, in the bail decision, that he turned his mind to that matter.

[29]     In  that  respect  I accept  Mr  Pilditch’s  submission  that  given  the  Judge’s finding of a real and significant risk, it can be taken as implicit that the Judge did not consider the risk could be managed by conditions of bail.

[30]     What I am now faced with is that the appellant has put forward an address with his current partner to which he could be bailed and has indicated that he would accept conditions of bail which would include a curfew from 7pm to 7am, a prohibition of travel beyond the city limits of Rotorua except when required to travel to Tokoroa for the purpose of attending Court, a condition that he not associate with either his former partner or the other complainant, a condition that he not own or use a mobile telephone, and a condition that he report three times a week.

[31]     Mindful as I am of the presumption that any accused person will be released on bail unless it is shown that there is just cause to discontinue detention, I am not satisfied that I am, on this appeal, at the point where I can give consideration to conditions of bail.  That is, I am not satisfied that the District Court Judge erred in the exercise of his discretion.

[32]     I accept Mr Pilditch’s submission that the appropriate course now, if the appellant wishes to proceed with a bail application, is to make a fresh application to the District Court.  I appreciate that this will involve a further step in the process but I consider that it is appropriate in this case.   In short, I am not satisfied that there grounds on which I can allow this appeal.

[33]     Accordingly, the appeal is dismissed.

Andrews  J