Green v Police HC Wanganui CRI 2010-483-32

[2010] NZHC 931

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2010-483-000032

BETWEEN  REIJHAN GREEN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         27 May 2010

Counsel:         D M Goodlet for Appellant

J M Woodcock for Respondent

Judgment:      31 May 2010

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 2.15pm on the 31st day of May 2010.

RESERVED JUDGMENT OF GENDALL J

[1]      The appellant is facing two charges of burglary and one of assault with a weapon and was refused bail by Judge M R Radford sitting in the District Court at Wanganui on 27 April 2010.  He appeals against that decision.

[2]      The appellant proposed that he be granted bail on condition that he reside at the address of his aunt, in Otara, Manukau City and subject to electronic monitoring. Judge Radford in his decision, referred to the considerations in s 8(1) of the Bail Act

2000.  He said:

The second matter:   risk that you may interfere with witnesses or other evidence, you are apparently a member of the Mongrel Mob and the police say in their opposition that members of that gang are known to use violence and intimidatory tactics against persons giving evidence against them, and this is raised specifically in this case.   Such further inquiries as the police

GREEN V NEW ZEALAND POLICE HC WANG CRI-2010-483-000032  31 May 2010

may wish to make are said to be hampered by you if further opportunity is given to you to act in a way that is imitable to the investigation.

[3]      In declining bail the Judge was not satisfied that the appellant would comply with the conditions of bail, including the strict conditions associated with electronic monitoring.    When  dealing  with  the  risk  of  possible  offending  whilst  on  bail Judge Radford said the appellant had a significant history of offending whilst on bail as well as an extensive conviction history.  He said that in weighing up all matters he was:

satisfied that there is a considerable risk that you will fail to appear, commit further offences or interfere with witnesses.   The question then remains, finally, can the concerns that I have be met by electronic monitoring? Electronic monitoring is simply a method by which those who are on bail are able to be kept track of.   It is suggested in this case that the address you propose is a very long way from Wanganui.  You have demonstrated in the past that you have little or no regard to orders of the Court and so I have no confidence that if you were granted bail by way of electronic monitoring that you would somehow regard those orders any differently from other orders of the Court and, in my view, there is a very high risk that you would break them.

[4]      Ms Goodlet submitted that Judge Radford was wrong to conclude that risks associated with the appellant being released on bail could not be ameliorated to an acceptable level by strict bail conditions, including electronic monitoring.  She has referred the Court to a number of cases where a condition requiring such monitoring was imposed to mitigate or lessen potential risks and argued that the Judge had failed to take that into account or to give it proper weight.   She emphasised that the appellant has the presumption of innocence and that although he has undoubted gang connections it is wrong to conclude that a risk exists of interfering with witnesses or the judicial process solely because he is a member of the Mongrel Mob gang.

Discussion

[5]      It is well understood that an important consideration for the Courts where electronic monitoring whilst on bail is proposed is whether such would minimise the risks inherent in the mandatory criteria specified in s 8(1) of the Bail Act 2000.  But bail subject to electronic monitoring is not a separate form of bail but simply the

provision of a condition or method which provides some monitoring safeguard of an accused pending trial.[1]

[1] Martin v Police HC Rotorua CRI-2006-077-1019, 9 February 2007.

[6]      Ms Goodlet referred to the remarks of Priestley J in McGuire v The Queen[2] to support her application on the basis that the Court there allowed an appeal against a refusal to grant bail subject to electronic monitoring because such condition would control a “low and acceptable degree of risk .... of absconding and re-offending”. But, as his Honour said it is impossible to lay down hard and fast rules because offenders granted bail with electronic monitoring have been known to abscond and to commit offences, although in most cases the risk is minimised and should be taken into account.

[2] McGuire v The Queen HC Hamilton CRI-2006-019-617, 2 March 2007.

[7]      The starting point is the mandatory considerations required in s 8(1).   It is obvious that Judge Radford concluded that because of the nature of the charges and the appellant’s past record of 69 convictions there was considerable risk that he would “commit further offences or interfere with witnesses”.

[8]      Judge Radford did not refer to s 12 of the Bail Act in his decision, but it applies in this case because of the appellant’s history.  As was discussed in the police report  on  the  bail  application  the  appellant  is  26,  faces  three  charges  carrying penalties of three or more years imprisonment and has previously received 31 sentences  of  imprisonment  and  has  three  burglary  convictions  for  offences committed whilst he was on bail.  The onus therefore is on him to satisfy the Court that bail should be granted and in particular (although not exclusively) the appellant had to satisfy the Judge on the balance of probabilities that he would not whilst on bail commit any offence of violence against or danger to the safety of any other person or commit any burglary or any other serious property offence.  Section 12(7) emphasises that in considering a bail application for a person to whom the section applies:

the need to protect the safety of the public and, where appropriate, the need to protect the safety of the victim or victims of the alleged offending, are primary considerations.

[9]      Bail  conditions  which  confine  the  appellant  to  a  home  and  subject  of electronic monitoring of course reduce the risk of further offending.  The question is whether that is reduced to an acceptable level.

[10]     The risk of offending whilst on bail may depend upon the type of offending for which a person has shown a propensity.   Offending which is linked to communications with associates is not minimised by bail conditions restricting a person to a home where cellphone, text messages and other communications can be made freely in their home.  The fact that a person has breached bail conditions and offended whilst on bail in the past is also a consideration.  The risk of intimidation of others  can  be  undertaken  despite  a  person  being  confined  to  a  home  as  can association with other criminals.  Naturally, bail conditions can prohibit that but they are able to be easily ignored and if a desire to maintain further criminal contacts exist, then electronically monitored bail is unlikely to make much difference in preventing it.  Of course, witness intimidation can occur if a person is in custody but it is obviously easier to perform, and more difficult to detect, when that person has been released from custody.

[11]     A  difficulty  the  appellant  faces  is  that  he  is  a  patched  member  of  the Mongrel Mob and despite counsel’s submission the Courts cannot turn a blind eye to the fact that gangs exist because of the strength of their numbers, frequency of criminal  acts  committed  by members  and  intimidation  of  witnesses,  particularly those who have been the victims of assaults.  The charge of assault with a weapon has, the police say, some features of gang intimidation of the victim.

[12]     The mandatory consideration which relates to flight risk is perhaps of lesser weight  in  this  case,  but  it  is  well  understood  that  the  greater the  likelihood  of conviction and imprisonment for serious offending then the greater the temptation is for an accused to not answer his bail.  Counsel correctly asserts that the presumption of innocence applies and is a factor but that does not, however, necessarily mean that without more, bail should be granted.  Otherwise it would be the case that by simply pleading not guilty an accused would always be released on bail.  The discretionary consideration of the strength of the Crown case and probability of conviction under s

8(2)(d)  may come  into  play in  the  Court’s  assessment  of  the  likelihood  of  not

answering bail and be balanced alongside the presumption of innocence.  Certainly in this case if the appellant is convicted on the burglary charges imprisonment would be inevitable.  He was sentenced to imprisonment for the same crime in April 2009 and has 15 previous burglary convictions.  The Crown’s case at first sight appears to be strong despite counsel’s submissions.   DNA analysis of an item found at the dwelling the subject of one of the burglary charges points squarely to the appellant being responsible.  Likewise, it is said that CCTV coverage exists of the appellant being at the other burglary of a hotel where a sum in excess of $7,000 was taken.  So too, the Crown has propensity evidence to the effect that the appellant is a recidivist burglar which may well be admissible to strengthen the Crown’s case where identity is in issue.

[13]     In his application for bail the appellant asserts that:

Family going through a hard time at the moment as my Nan has recently passed away and I need to be there to support my auntie who I look upon as my mum, they are my whangai parents.

That does not seem to address the obligations on the appellant to satisfy the onus on him under s 12.

[14]     The only matter that can realistically be advanced on behalf of the appellant is the likely time before a defended hearing.   The charges, however, are brought summarily and a hearing of them in the District Court should be obtained without undue delay.  But the delay, in any event, is not such that it outweighs the mandatory factors contained in s 8(1).

[15]   Whilst electronic monitoring and a 24-hour curfew would minimise the opportunity to  commit  further  offences,  the  undoubted  gang  connections  of  the appellant with the extended family, with whom he would inevitably have the opportunity to have contact if bailed, heighten  the risk of interference with the process  of  justice.    I  accept  the  respondent’s  submission  that  the  appellant’s behaviour does not augur well for compliance with bail conditions given that he breached release conditions a month after conviction for burglary and has faced other charges of breaching Court orders.

[16]     I am not persuaded that the appellant has discharged the onus upon him and in terms of the mandatory factors contained in s 8 in my view the risk of interference with witnesses or evidence, and of offending whilst on bail, is a risk which cannot be reduced to an acceptable level by bail on condition of electronic monitoring.  The risk provides a justifiable cause for continued detention.

[17]     It was open to Judge Radford to conclude that if granted bail subject to electronic monitoring the appellant would not:

somehow regard those orders any differently from the other orders of the

Court and ... there is a very high risk that you would break them.

[18]     The appellant has not discharged, to my satisfaction, the onus upon him under s 12 and despite Judge Radford not having to base his decision upon that

consideration, he nevertheless was correct to decline bail.  The appeal is dismissed.

J W Gendall J

Solicitors:

D M Goodlet, Barrister and Solicitor, P O Box 875, Wanganui

Crown Solicitor, Wanganui for Respondent