H v Police HC Christchurch CRI 2008-409-43

[2008] NZHC 2223

This case has been anonymized

NOT TO BE PUBLISHED UNTIL FINAL DISPOSITION OF HEARING

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008-409-000043

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 March 2008

Counsel:         S G Bailey for Appellant

S-L Litt for Respondent

Judgment:      7 March 2008

ORAL JUDGMENT OF PANCKHURST J

[1]      This is an appeal against refusal of bail in the District Court.  The appellant, H  , is charged with wounding with intent.  The relevant events occurred at his home on 27 February. He and the complainant, who had been in an “on again off again” relationship for a significant period, were drinking together.

[2]      A dispute occurred when the appellant sought the return of his Eftpos card which was held by his then partner on account of his gambling problem.  A struggle ensued in the course of which Mr H   took possession of a knife.   His partner sustained a stab wound to her left forearm, described in the summary of facts as “a

puncture wound”.   Soon after she left the house and a short while later broke a

H V NEW ZEALAND POLICE HC CHCH CRI 2008-409-000043  7 March 2008

window in order to regain entry and fetch her handbag, which she required in order to leave the address by taxi.

[3]      In the meantime Mr H   called the police, the complainant was admitted to Christchurch Hospital, although it is unclear to me whether her puncture injury to the left arm was the main problem or cuts which she had sustained in breaking the window to regain entry.

[4]      Bail  was  considered  by Judge  Walsh  in  the  District  Court  on  4  March. Section 10 applied.   Mr H   has a conviction for rape committed in 1997 in relation to which he was sentenced to seven years imprisonment.  He has been out of prison since mid-2002.   He also has three previous convictions for assaulting a female in 1994, common assault in 1986 and a further common assault in 1974. Otherwise his handful of convictions are not of particular relevance in the present context.

[5]      Mr H   is aged 52 years.  He is in employment with Fletcher Steel.  His employer has written a letter dated 29 February which confirms the company wished to retain Mr H  ’s services and would keep his job open until 4 March.  That of course was to be the day of the District Court bail hearing.   Ms Bailey, however, assures me that the deadline has been extended until today.   For that reason the present appeal was set down as a matter of urgency.

[6]      The Judge declined bail essentially on account of concerns he held for the complainant’s safe being.   Correctly he noted that s10 imposed an onus upon the appellant to demonstrate on the balance of probabilities that if granted bail he would not commit offences involving violence or danger to the safety of others.  The Judge concluded he could not be satisfied of this.   He noted the on and off relationship between the parties over a two year period; the appellant’s previous record (to which I have just referred); the seriousness of the current charge and the victim’s concerns which extended to the appellant’s son who apparently has assaulted her on a past occasion which resulted in a prosecution and conviction.

[7]      On what basis then is the appeal brought?  Effectively Ms Bailey contended that the Judge had failed to consider the circumstance that the appellant has a clean record both in relation to answering bail and with reference to not offending while in receipt of bail.  This, counsel submitted, was a strong pointer to the fact that he could be relied upon to comply with stringent bail terms if released from custody and it was further argued that the Judge’s failure to address this dimension warranted the intervention of this Court.  The Judge did refer to “the absence of breaches of bail”. He did not expressly refer to the issue of non-offending while on bail.

[8]      The complainant’s views are contained in a letter from a victim advisor dated

3 March.  She expressed particular concern if the appellant was to be bailed to his son’s address in Hastings Street.  She explained that if father and son were together she was afraid that they would “put their heads together” against her.  Her concerns appear to have a focus upon the combination of father and son, rather than upon the appellant alone.

[9]      I stood the matter down briefly in the hope that it may be possible for the complainant to appear and further explain her concerns to me in person.  In the event this  is  not  possible.    I  must  therefore  decide  the  appeal  on  the  basis  of  the information that is available.

[10]     I  do  consider  that  the  Judge  was  required  to  squarely  confront  the circumstance that the appellant has a clear bail history with reference to further offending.  This is a not insignificant factor, particularly in dealing with a man of this age who has four relevant previous convictions but which are spaced over a period of about 30 years.  It is also a dimension of the case that he has been back in the community since his most recent serious conviction for almost six years, during which time his only conviction is for a driving offence.

[11]     I do not diminish the sinister nature of the circumstances giving rise to the present charge.  That said, the injury described as a puncture wound seems to have been inflicted in the course of a struggle between the appellant and the complainant concerning the return of his Eftpos card.   Perhaps the most sinister aspect is that Mr H   placed himself in possession of a knife in the course of a domestic dispute

and as a result of which a wound has been caused.   He says that the wound was accidental, but the complainant considers that it was deliberate.

[12]     It is tempting to defer the decision in order to obtain further  and  better information, particularly as to the source and extent of the complainant’s concerns. However, if Mr H   to be granted bail at all it seems to me that it is highly desirable that it occur now so that his job remains available to him.

[13]     After a good deal of anxious reflection I reach the view that the Judge should have given greater consideration to the matter that I have identified.  Had he done so, given all of the circumstances to which I have referred, it seems to me that a finding in terms of s10(5) that Mr H   can meet the onus upon him was available.

[14]     For these reasons I allow the appeal.   Bail is granted but subject to these terms:

(a)     the appellant is to reside at 40 Riley Crescent, Woolston with

James Tangira,

(b)he is subject to a curfew from 9.00 pm to 5.00 am and must answer the door at the above address when requested by police officers to do so,

(c)     he is not to communicate or associate with the complainant nor go within a kilometre of her home address, and

(d)he is not to communicate or associate with Rawiri Price H  , his son, until further order of the Court.

With reference to the final condition it reflects the concerns voiced by the complainant.  It may however be a condition which warrants review in the District

Court as soon as some further information is available.

Solicitors:

Serina Bailey Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent