H v Police HC Wellington CRI-2009-485-142

[2009] NZHC 1469

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-485-142

H

v

NEW ZEALAND POLICE

Hearing:         27 October 2009

Appearances: Ms Overton for Mr H 

Ms Grau for New Zealand Police

Judgment:      27 October 2009

JUDGMENT OF MALLON J

[1]      Mr H   appeals against a District Court decision given on 2 October

2009 which declined to grant him bail.  He is charged with four counts of breach of a protection order and one count of male assaults female arising out of events on

13 June  2009.    He  is  also  charged  with  a  further  three  counts  of  breach  of  a protection order and one charge of threatening to kill in respect of later events arising while he was on bail on the earlier counts.  All of the charges relate to his former partner.

[2]      The District Court decision proceeded on the basis of the criteria in s 8 of the Bail Act 2000.  On this appeal it is accepted that s 12(1)(b) of the Bail Act applies so that Mr H   is not to be granted bail unless he satisfies the Court that bail

should be granted.  However his counsel advises that the second set of charges will

H V NEW ZEALAND POLICE HC WN CRI-2009-485-142  27 October 2009

be before Judge Kelly tomorrow and that at this time the threatening to kill charge will be withdrawn.  That would then mean s 12 no longer applies and bail would be considered under s 8.

[3]      In  these  circumstances  Mr  H  ’s  counsel  initially proposed  that  the present appeal be adjourned.  The Crown considered that the better course would be to dismiss the appeal and for Mr H   to make a fresh bail application tomorrow before Judge Kelly on the basis that the withdrawal of the threatening to kill charge would be a new circumstance.   Mr H  ’s counsel did not oppose this if my judgment indicated that the withdrawal of the threatening to kill charge should be viewed as a new circumstance.

[4]       I agree with counsel that it would be a new circumstance, and that the better course at this stage is for Mr H   to make a new bail application tomorrow, rather than to have his bail determined on the basis of an appeal from the District Court’s 2 October decision but also on the basis that s 12 of the Bail Act applies.  I also note that counsel advise that Judge Kelly is aware of Mr H  ’s history and so may be better placed to make an assessment of the bail risks once the charges he faces are finalised.  Accordingly the appeal is dismissed.

Mallon J

Solicitors:

M Overton, Wellington, ph: 476 4610, fax: [phone]

K Grau, Luke Cunningham & Clere, Wellington, ph: 04 472 1050, fax: [phone], email: [email protected]