H v Police HC Wellington CRI 2008-485-59

[2008] NZHC 2374

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2008-485-59
CRI 2008-485-60

CRI 2008-485-61

H

v

NEW ZEALAND POLICE

Hearing:         17 June 2008

Appearances: Mr Johnson for Appellant

Mr Murray for Respondent

Judgment:      17 June 2008

JUDGMENT OF MALLON J

[1]      Ms H   appeals against a refusal to grant her bail.  She faces the following charges under the Land Transport Act 1998:

a)       On 31 October 2002 driving a vehicle while the proportion of alcohol in her blood exceeded 80 milligrams of alcohol per 100 millilitres of blood (s 56(2));

b)On  15  December  2006  driving  a  vehicle  while  the  proportion  of alcohol  in  her  blood  exceeded  80  milligrams  of  alcohol  per  100

millilitres of blood (s 56(2));

H V NEW ZEALAND POLICE HC WN CRI 2008-485-59  17 June 2008

c)        On 10 June 2007 refusing to permit a blood specimen to be taken after having been required to do so (s 60(1)(a));

d)On 4 June 2008 driving a motor vehicle while her driver’s licence was suspended (ss 32(1)(c) and 32(3));

e)        On 4 June 2008 refusing to permit a blood specimen to be taken after having been required to do so (s 60(1)(a)).

[2]      The delay with the 2002 matter arose because the information was not served for a four year period.  Not guilty pleas were entered in relation to the 15 December

2006 and 10 June 2007 matters and defended hearings were scheduled to take place on 27 May 2008 and 11 April 2008.  A not guilty plea was also entered on the 2002 matter  and  a  defended  hearing  was  scheduled  to  take  place  on  30  April  2008. Ms H   failed to appear for those three hearings.

[3]      She was arrested on the evening of 4 June in relation to the fourth and fifth charges listed above and appeared in the District Court on 5 June 2008.  At that time she was remanded in custody until Tuesday 10 June 2008 so that she had time to arrange legal representation to “explain the background to  these  matters”.    The remand was in custody because Ms H   had  “failed to appear for  a defended fixture on more than one occasion”.  On the basis of this record the Judge was not satisfied that Ms H   was likely to come back to Court if she were granted bail.  As I read this decision the question of bail was to be reconsidered in a week’s time once representation had been arranged.

[4]      Mr Johnson was instructed in relation to the Porirua matters.   Prior to the scheduled defended hearings Mr Johnson endeavoured to contact Ms H   about those matters but was unable to reach her on her telephone or on a cellphone number which  he  had  been  given.    Mr  Johnson  was  not  acting  for  Ms H    at  the

5 June 2008 hearing.   Since that hearing Ms H   has been granted legal aid and Mr Johnson has been assigned to represent her.  Mr Johnson has also been able to contact Ms H  .  He advises that Ms H   was confused as to the dates and the difficulties in reaching her have been resolved.  He also advises that until her remand

in custody Ms H   was living at an address in Wainuiomata and had been living there for some time.

[5]      Mr  Johnson  advises  that  when  he  appeared  for  Ms H    on  Tuesday

10 June 2008 the District Court Judge advised him that bail had been declined by the Judge on 5 June 2008.  He understood that the Judge on 10 June 2008 was of the view that bail was not to be reconsidered.  He does not know whether the typewritten notes of the Judge hearing the matter on 5 June were on the Court’s file at that time. In any event, because the Judge’s view was that the decision on bail had already been made, Mr Johnson considered the appropriate course was to lodge an appeal to the High Court.

[6]      On this appeal, Mr Johnson’s principal submission is that defended hearings may not now take place for six to nine months and that as a result there is a risk that Ms H   will spend more time in custody than if she is convicted on any of the current charges.  Bail continues to be opposed by the police because Ms H   has failed to appear on three occasions and subsequent to those non-appearances she has been charged with further offences.  On that basis it is said that she is unlikely to appear and also that there is a risk of reoffending.

[7]      The maximum penalty on each of the charges which Ms H   faces is three months’ imprisonment or a fine not exceeding $4,500 and disqualification from holding or obtaining a driver’s licence.  This means that Ms H   is bailable as of right  (s 7(2) Bail  Act)  unless  she  has  previously been  convicted  on  an  offence punishable by imprisonment (s 7(4) Bail Act).  Ms H   was convicted in 2005 on a charge of common assault.   In 2004 she was convicted on a charge of resisting police.  In 1991 she was convicted of having a breath alcohol level over the legal limit.   This means that Ms H   is not bailable as of right but must be released by a Court on reasonable terms and conditions unless the Court is satisfied that there is just cause for continued detention (s 7(5) Bail Act).

[8]      On this appeal it must be shown that the District Court Judge applied the wrong principles or considered irrelevant matters or that the decision was plainly wrong.  My reading of the 5 June decision was that the remand was to be in custody

until 10 June 2008 at which time the question of bail was to be reconsidered once she had instructed a lawyer and the background had been explained to the Court.   It appears that this opportunity to reconsider bail was not given at the 10 June 2008 appearance.  Neither Judge considered whether conditions would address the risk of non-appearance.

[9]      In my view bail should now be granted.   Given her previous failures to appear there is a risk that Ms H   will fail to appear at her next court date (which is next week) although Mr Johnson expects that she will appear.  There is also some risk of reoffending in light of the history.  On the other hand there is a concern that time  in  custody  may  exceed  any  penalty  imposed  in  relation  to  these  charges. Mr Johnson estimates that defended hearings are unlikely to be available for a six to nine  month  period.    Mr  Murray does  not  have  a  different  view.    In  my  view conditions should be imposed to meet the identified risks.  If Ms H   does reoffend or if she fails to appear again then bail will need to be reconsidered at that time.

[10]     The appeal is allowed.   Ms H   is to be granted bail on conditions. The conditions of bail are that she reside at 300 Wellington Road, Wainuiomata and that she not drive a motor vehicle.

Mallon J

Counsel:

Mr Johnson, PO Box 962, Wellington (email: [email protected])

Mr Murray, Luke Cunningham Clere, PO Box 10357, Wellington (email: [email protected])