G v Police HC Christchurch Cri-2006-409-206

[2006] NZHC 1464

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2006-409-000206

G

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         23 November 2006

Counsel:        S G Bailey for Appellant

M N Zarifeh for Respondent

Judgment:      23 November 2006

ORAL JUDGMENT OF PANCKHURST J

[1]      The appellant challenges a decision of Judge Crosbie on 25 October by which he declined  bail pending  the  hearing  of a  raft  of charges.    The  appellant  faces allegations which centre upon three different days.  It is alleged that on 6 October he unlawfully took a motor-vehicle effectively by trickery and that on that same day he committed two offences of driving while disqualified.

[2]      With reference to 13 October, there are allegations of unlawfully discharging an airgun and causing intentional damage.  The following day, 14 October, gives rise to two charges of driving while disqualified, one of careless use of an airgun, one of

discharging an airgun and another of presenting an airgun.  With reference to these

G V NZ POLICE HC CHCH CRI-2006-409-000206  23 November 2006

three charges the allegation is that an airgun was used carelessly with reference to people who were attending a barbeque, that the gun was discharged in the direction of traffic, and that it was presented both at pedestrians and at a number of people who were attending a service station.   It was this last presentation of the airgun which led to the police being called and the apprehension of the appellant and his alleged co-offender who were found to be in possession of instruments, allegedly, in the car which had been unlawfully taken some days earlier.

[3]      The appellant is aged only 20 years.  Nonetheless he has a significant list of convictions for offences of dishonesty, for the contravention of various orders, for driving and some for violence.  It is not a good record for a person of such tender years.

[4]      In addition the appellant faced the difficulty that s12(1)(b) applied and hence there was an onus upon him to satisfy the District Court Judge that if granted bail, it was likely he would not commit serious property offences or offences of violence. He did not meet that onus, although it seems to me the Judge also based his decision on more conventional s8 considerations.

[5]      What the Judge said was this:

The cases as I have expressed them, even though the weapon used is an airgun, still raises serious issues of public safety.  I do take into account your past conduct also.  In the circumstances I am satisfied that there is some risk that you will fail to appear.   As to whether you have committed offences while on bail I am unable to assess that as high, I don’t have a report on that at all but, in my view, there is a need to protect the public.  The fact that you are already awaiting a hearing in relation to breach of release conditions is also something that is cause for concern.

In all the circumstances I am not satisfied that you have discharged the onus that exists under s12 and, accordingly, there is just cause for detention.

[6]      In support of the appeal Mrs Bailey has argued that the Judge was wrong to conclude that there was a risk of failure to appear if bail was granted and further, that the Judge in effect over-emphasised the risk to the public should the appellant be released on bail.   My attention was also drawn to the circumstance that the case, subject to some fine-tuning of the charges to ensure that all of them are susceptible of summary disposition, will be heard as a defended matter about the middle of

January 2007.    Hence  any  remand  in  custody  is  likely  to  be  for  a  reasonably significant period.

[7]      I am not satisfied that the Judge erred in the conclusion which he reached. This impresses me as a strong police case.   Assuming the allegations are sheeted home the appellant was involved in an ongoing course of conduct which involved danger to the public in relation to the use of an airgun.  In a s12 context I think it unsurprising that the Judge found that the onus was not met, particularly with regard to the risk of violent offending.  But more than that, the appellant’s record, including the circumstance that he awaits the hearing of a charge of breaching conditions and his repeat offending in recent times, indicated that in s8 terms, he was not a good candidate for bail in any event.

[8]      For these reasons I am not persuaded the Judge erred and the appeal must therefore be dismissed.

Solicitors:

FS Legal, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent