Harris v Police HC Auckland CRI-2005-404-50

[2005] NZHC 1291

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-404-50

BETWEEN

EDWARD WAYNE HARRIS

Appellant

AND

POLICE

Respondent

Hearing:         25 February 2005

Appearances: Frank Hogan for Appellant

Mina Wharepouri for Respondent Judgment:   25 February 2005

JUDGMENT OF HARRISON J

SOLICITORS

Frank Hogan (Auckland) for Appellant Meredith Connell (Auckland) for Respondent

HARRIS V POLICE HC AK CRI-2005-404-50 [25 February 2005]

[1]    Mr Edward Harris is charged that on 9 February 2005 he was guilty of unlawful detention and wounding with intent. On 10 February 2005 he applied for bail in the District Court at Manukau. In a reasoned decision, Judge  Mary-Beth Sharp refused Mr Harris’ application and remanded him in custody.

[2]    Mr Harris appeals. Mr Frank Hogan has advanced a forceful argument on his behalf today. But in my judgment Mr Harris’ appeal is hopeless.

[3]    To persuade me to exercise jurisdiction to interfere, Mr Hogan must establish that the Judge erred in exercising her discretion. In turn this requires my satisfaction that her refusal to grant bail was contrary to principle, or that she failed to take into account relevant factors or took account of irrelevant factors, or that her decision was plainly wrong.

[4]    In this case the Judge, as she was required by statute, took primary account of the three mandatory considerations (s 8(1) Bail Act 2000). She was satisfied that the first two were neutral; that is, there was no appreciable risk that Mr Harris  may fail to appear or that he may interfere with witnesses or other evidence. However, she was satisfied that there was a real risk that he may offend again while on bail. The Judge had an ample evidential foundation for this conclusion. Mr Harris has  a history of committing offences while on bail. They include contravening a  protection order on four occasions, three assaults upon females, cultivating cannabis, and common assault. Also, Mr Harris has a lengthy list of previous convictions for a number of serious offences.

[5]    The Judge also took into account other factors falling within the discretionary category (s 8(2)) – she assessed that the prosecution case was strong; she was unimpressed by Mr Harris’ presentation of his prospective defence of self defence; she noted that if convicted he would be sentenced to lengthy terms of imprisonment; she was conscious of the likely delay before trial. Again, though, she repeated her reliance upon his previous convictions for offending while on bail.

[6]    In these circumstances there is no possible ground upon which I could interfere with the Judge’s decision. She gave principal weight, as she was bound by

law, to the mandatory consideration of the risk that Mr Harris may offend while on bail. She also gave lesser weight to other factors. Mr Hogan has failed to satisfy me that she erred in any respect in refusing bail. In my judgment, she had no alternative. Accordingly, I dismiss Mr Harris’ appeal.

Rhys Harrison J