H v Police HC New Plymouth Cri-2007-443-3

[2007] NZHC 325

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2007-443-000003

BETWEEN  H

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         18 April 2007

Appearances: J Hannam for Appellant

J S Gurnick for Respondent

Judgment:      18 April 2007

ORAL JUDGMENT OF GENDALL J

[1]      This is an appeal against a decision of a Justice of the Peace sitting in the District Court at Hawera declining to grant bail to the appellant.   In essence the decision was to cancel an order granting bail earlier made by a District Court Judge on 22 February 2007.

[2]      The appellant is facing charges of unlawful assembly, assault with intent to rob and theft, alleged to have occurred on 14 February 2007 at  New Plymouth. Initially, he was remanded in custody but was granted bail in the New Plymouth District Court by Judge Blaikie on 22 February 2007 on conditions as to residence, curfew between the hours of 9pm and 6am, reporting clause and directions that he not contact any witnesses or any patched or gang members or consume alcohol. That was on 22 February 2007.

[3]      In the next four days he breached is bail conditions on three occasions.  On each occasion he was brought before the District Court at Hawera and warned as to

H V NEW ZEALAND POLICE HC NWP CRI-2007-443-000003  18 April 2007

his disobedience of the Court’s order and breaches of the conditions.  He was told that if he continued to breach is conditions he would be remanded in custody.  He ignored that direction and warnings and continued to ignore compliance with the conditions as to remaining at the residential address and comply with the curfew.  It is perfectly understandable why the Justice of the Peace threw up his hands in horror and remanded the appellant in custody.

[4]      Bail is not  an entitlement,  although the  provisions of the  Bail  Act  2000 require that in all circumstances require there be just cause for a continued detention of  an  accused  in  the  position  of  Mr  H  .     The  mandatory  conditions  or considerations which the Court is required to bear in mind are contained in s8(1), they being risk of failing to appear;  risk of interference with witnesses;  and risk of offending   whilst   on  bail.      The   other   considerations   in   subsection   (2)   are discretionary.  The Court may take such into account, and weigh up the balance of such which are relevant.  Mr Hannam submits the strength of the Crown case is not strong.   That is one discretionary consideration.   Others include the nature of the offence,  and  certainly  assault  with  intent  to  rob  is  a  serious  offence.    Other conditions include whether a defendant has a history of offending whilst on bail.  Of course, he does not, but the section goes on to refer to a history of breaching Court orders, including orders imposing bail conditions.

[5]      From his three  breaches  in three  or four  days,  the  appellant  displayed  a contempt for the decision of Judge Blaikie.  But I am advised now that the appellant has employment available to him in Eltham and well understands the need to comply with bail conditions;   he has available the family residence address which is in Hawera;   and the Crown says the victim’s concerns as to  being approached or intimidated, have been allayed somewhat through having moved out of the area.

[6]      Although I do not have any information as to the circumstances surrounding the alleged offending, the information in relation to the unlawful assembly charge suggests that more than two persons may have some interest in the ultimate outcome of the proceedings.  The appellant has no previous convictions but it seems he is a junior member of an organisation known as the Black Power.  He is quite entitled to associate with whomever he chooses provided that the law is not broken.   At the

moment there are unresolved serious criminal charges, which it seems involves him and allegedly a number of his associates.   But he is aged 22 and has no previous convictions.  The breaches of bail, whilst significant and illustrating a flouting of the Court’s authority, have not reached a level which given the present position, requires that he be kept in custody.   But he will have to learn that the privilege of bail is something that has to be adhered to, given the conditions I intend to impose.  Whilst Mr Hannam has said the previous conditions should remain, regrettably Mr H   did not seem to understand them, or chose not to abide by them, so he will be granted bail on the following conditions:

(1)       He is to reside at 5 A’Court Street, Hawera.

(2)       He is subject to a curfew on the following terms:

(a) He is not to leave that address other than to travel directly to his place of work at Riverlands Eltham Ltd, commencing at 6pm and returning to the residential address from his workplace at 3am.

(b) His  curfew  is  lifted  between  the  hours  of  5pm  and  6pm  on Mondays, Wednesdays and Fridays.   During each time he will report to the Hawera Police Station prior to travelling directly to his place of work.

(c) He is not to consume alcohol or enter licensed premises other than licensed supermarkets or dairies.

(d) He  is  not  to  have  any  contact,  direct  or  indirect,  with  the complainant or any witness of the prosecution, or with Rangi Rick Brown, Adrian Fenton, Lawrence Te Tuki, Quentin Laupama and Tane Hohaia, named as alleged co-offenders in one information.

(e) He is not to have any telephone or other contact direct or indirect with any patched or unpatched member of the Black Power association pending the ultimate determination of the proceedings.

………………………………

J W Gendall J

Solicitors:

J Hannam, New Plymouth for Appellant

Crown Solicitor, New Plymouth for Respondent