Hussaini v New Zealand Police HC Auckland CRI 2008-409-000041

[2008] NZHC 2252

NOT TO BE PUBLISHED UNTIL FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008-409-000041

CRI 2008-409-000042

MUSTAFA HUSSAINI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 March 2008

Counsel:         G M Lynch for Appellant

Z R Johnston for Respondent

Judgment:      20 March 2008

ORAL JUDGMENT OF PANCKHURST J

[1]      This is a somewhat complicated appeal against refusal of bail pending a jury trial which is scheduled to commence on 7 April.   The appellant, Mr Hussaini, is aged  18  years,  almost  19.    He  is  charged  with  serious  offences  of  aggravated burglary and aggravated robbery, allegedly committed with a co-offender on 20 May

2007.  The Crown case is that the co-offender engaged the services, and went to the house, of a prostitute.  That he, on pretext, opened the door to the prostitute’s home and that the appellant entered that home disguised and armed; and committed a

robbery which extended to taking the wallet of the co-offender.   This the Crown

MUSTAFA HUSSAINI V NEW ZEALAND POLICE HC CHCH CRI 2008-409-000041  20 March 2008

maintain was a ruse in order to disguise the fact that this was a planned robbery involving the two men.

[2]      Because the second man was masked throughout the entry into the house there is no direct identification evidence.  Rather, the Crown case is based upon a link between the appellant and the prostitute’s car which was recovered a day or two after the event.  The Crown also seeks to rely upon a relative of the appellant who, it is suggested, was prevailed upon to supply a false alibi with reference to the day of the alleged offending.  As can be seen the case against Mr Hussaini is dependent to a significant extent upon the evidence which the Crown will seek to elicit from people who are known or related to him.

[3]      Initially the appellant was granted bail on 1 June 2007 on stringent terms including a 24 hour curfew.   The day of that bail decision it is alleged that he threatened to kill the acquaintance who was driving the prostitute’s vehicle when it was recovered by the police.   This man initially explained that he obtained the vehicle from the appellant (hence forging a link between the appellant and the taking of the vehicle two days earlier).

[4]      A few days later in June the appellant appeared in relation to a breach of curfew.  He was readmitted to bail subject to a final warning.  In August there was a further breach of curfew.  In September last there was a preliminary hearing which culminated in a committal for trial.  I should interpolate that the appellant’s relative was called at the preliminary hearing and although he gave some evidence consistent with being prevailed upon to supply an alibi, his evidence was diluted considerably when he suggested that it was an alibi with reference to a day subsequent to the offending, rather than the day of the offending itself.

[5]      In October there was a further breach of curfew and of a non-association clause which required that Mr Hussaini not associate with the complainant in the threatening to kill matter.  In January there was a further breach of curfew which also involved association with the appellant’s relative (who is implicated in the alibi evidence).  Nonetheless on 17 January Judge Moran granted bail afresh subject to deletion of the 24 hour curfew clause.  In doing so he comprehensively reviewed the

history of the case including reference to all of the various breaches to which I have just referred.  He concluded that the breaches could only be relevant in the sense that they indicated a heightened risk with reference to interference with witnesses.  As to that  he  noted  that  Mr  Gul  (the  acquaintance)  had  not  given  evidence  at  the preliminary hearing and was not at least at that point a Crown witness in relation to the robbery trial, and that Mr Quasimi (the relative) had given evidence but had effectively not come up to brief with reference to the alleged false alibi.  Hence the Judge reasoned that there was limited scope for the appellant to interfere with witnesses.    Given  his  age  he  concluded  that  bail  did  remain  an  available,  or desirable, course and hence it was granted.

[6]      If  this  history  is  not  enough,  the  appellant  then  appeared  again  on  20

February on a further bail breach since he had been found in a car in which his relative was also present.  Judge Crosbie reconsidered bail and concluded that there was no option but a remand in custody.  He noted there had been four occasions of significant breach of bail conditions.  This conclusion was expressed in these terms:

The first thing is your age, 18.   Is there no other desirable course?   The second is whether there is a real and significant risk now that you will not adhere to your bail conditions.   You have proven this now, time and time again.  In the Court’s view there is a real and significant risk.  Second, you have proven that there is no other desirable course, so bail is denied.  You will be remanded in custody through to your trial date and you will be held apart from adult prisoners.

[7]      On what basis is the Judge’s decision challenged?  Effectively it is that the Judge misapplied s8 of the Bail Act.  That section as amended provides in s.s. (3) that where  a breach of bail conditions exists, such breaches may be taken into account under s.s. (2)(e) in so far as they are relevant to whether there is a real and significant risk that the appellant may fail to appear, interfere with witnesses or offend while on bail.

[8]      Subsection (2)(e) identifies a history of offending on bail or breach of Court orders including bail conditions, as a matter which may be taken into account in determining whether there is just cause for continued detention.  However, and this is the important point, it is evident from the structure of s8 as it is now drawn that the three risks in s.s. (1) are the factors which can justify continued detention.  This is

apparent from the manner in which s.s. (2) has been redrawn and, in particular, with reference  to  breach  of  bail  conditions,  s.s.  (3)  makes  it  clear  that  breaches  are relevant to the extent that they inform the judgment as to whether there is a real and substantial risk as defined in s.s. (1).

[9]      Hence I am bound to accept Mr Lynch’s argument that the Judge erred to the extent that he found there was “a real and significant risk that you will not adhere to your bail conditions”.   No doubt there was, but that was not the question.   The question was whether the appellant’s history of non-compliance with conditions justified the conclusion that there was a real and significant risk of further offending, non-appearance or of interference with witnesses.   That question was not directly addressed.

[10]     There is also the difficulty that Judge Moran did address that very question and, for the reasons he gave on 17 January, concluded that the relevant two witnesses should not be seen as greatly susceptible of influence.  One of them was not then a Crown witness and the other had given somewhat muted evidence at the preliminary hearing, anyway.

[11]     Matters have changed to the extent that Ms Johnston said that Mr Gul is now to be a Crown witness.  That is the Crown is to endeavour to obtain evidence from him  confirming  that  he  obtained  the  victim’s  vehicle  from  Mr Hussaini  in  the immediate aftermath of the robbery itself.

[12]     In reconsidering matters, as I must, given the problem I have identified with reference to s8, does this development mean that there is now a proper basis to fear that the appellant’s non-compliance with bail conditions could indeed result in a real and substantial risk of his interfering with witnesses?   In assessing that risk it is relevant to have regard to other matters, including that the trial is relatively near, being about two or three weeks away.

[13]     In my view there is a risk with reference to interference.  It may be that the situation in relation to Mr Quasimi is ambiguous and that he is no longer worthy of interference anyway.  As to Mr Gul, who is the subject of a threatening to kill charge

which is still to be heard, it seems to me that there must remain a significant element of risk.   Judge Moran did not need to consider that for the reason I have already mentioned.

[14]     As Judge Crosbie rightly recognised the decision about bail in this case had to be approached on the basis that a remand in custody was only appropriate if no other course was desirable.   It seems to me that no other course is desirable here, given what I have just said as to the risk of interference.

[15]     The history of breaches in this case, although many of the breaches are of a different nature, is such that I agree with Judge Crosbie that the courts can have no confidence in Mr Hussaini’s performance of bail conditions.  In that sense he is very much the author of his own misfortune and for the reasons I have endeavoured to explain  I  conclude  that,  although  for  different  reasons,  continued  detention  is justified.

[16]     The appeal is dismissed.

Solicitors:

Gerard Lynch Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent