K v Police CRI-2010-404-51 HC Auckland

[2010] NZHC 413

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-51

BETWEEN  K

Appellant

ANDPOLICE Respondent

Hearing:         19 March 2010

Counsel:         Charles Tregonning for Appellant

Scott McColgan for Respondent

Judgment:      19 March 2010

[ORAL] JUDGMENT OF HUGH WILLIAMS J. [BAIL APPEAL]

[1]      This is an appeal against a refusal by Judge Wade as far back as 18 January

2010 to grant the appellant bail.

[2]      The appellant is charged with one count of injuring with intent to injure which  occurred  on  16  January  2010.     The  person  injured  was  his  mother, Mrs Subritzky, a lady of 63 years of age.

[3]      According to the Summary of Facts, the mother and son got into a heated argument during the course of which Mr K   stood close to his mother whilst the argument was in progress and then head-butted her.   The Police say she then fell back and hit her head, as a result of which she was later found to have suffered a

brain bleed and was hospitalised for a period.

K V POLICE HC AK CRI-2010-404-51  19 March 2010

[4]      Since  the  incident  which  gave  rise  to  the  charge,  Mrs  Subritzky  has apparently recanted from the story she originally gave the Police, and the story given to ambulance officers and others who attended.  She has now provided a statement to the Police but refuses to sign it and there must accordingly be doubt as to what evidence she is likely to give, if any, when Mr K  ’s trial occurs on 21 May

2010.

[5]      Mr   McColgan,   however,   makes   clear   that   the   Police   will  summons Mrs Subritzky to give evidence and the way in which her evidence proceeds will then be a matter for the trial Judge.  The Police take the view they have sufficient surrounding evidence - irrespective of whether Mrs Subritzky testifies - to justify continuing with the prosecution and Judge Wade, in the decision under challenge, makes the point that the provisions of the Evidence Act 2006 are such that the prosecution may be able to proceed - even succeed - without Mrs Subritzky’s active involvement.

[6]      It  is  clear  that  Mr  K    has  been  in  custody for  something over  two months, as a result of Judge Wade declining his application for bail.  If the appeal is unsuccessful he will remain in custody for something in excess of a further two months before his trial.

[7]      It is accepted that because of the appellant’s appalling record of previous convictions he is someone to whom ss 10 and 12 of the Bail Act 2000 apply.  Judge Wade recorded that Mr K   has received a total of 42 sentences of imprisonment up to this stage.  They include very serious convictions and they also include a large number of convictions such as six for breaching protection orders, two of escaping from custody, and a dozen failures to answer bail.

[8]      Had it not been for the appellant’s very poor record and the fact that it was his mother whom he is said to have assaulted, it may have been the case that Judge Wade might have been more sympathetic to the bail application.

[9]      Mr Tregonning makes  the point that since this  matter was  called before Stevens J at an earlier stage affidavits have now been filed showing that Mr K   could reside at an address at some distance from his mother’s home.

[10]     The position is that the Prosecution obviously faces difficulties in continuing with the charge against Mr K   but it is by no means a foregone conclusion that the Prosecution cannot succeed.  That remains to be seen.

[11]     Mr K   has been in custody for two months and faces custody for a further two months if the appeal is denied.  That might be seen to be unfortunate in view of the problems the Prosecution faces but in view of his appalling record of convictions and especially breaches of his obligations to the Court, any bail to be allowed could only be on the strictest of terms.

[12]     The residence at which it is proposed that Mr K   reside - 20 Albrecht

Avenue, Mt Roskill, Auckland - would appear to be satisfactory.

[13]     Mr  K    has  filed  an  affidavit  exhibiting  letters  from  Atlas  Concrete Limited at 11 Wairau Road, Takapuna, North Shore, showing that Mr K   has worked for them as a concrete truck driver.   Initially, it seems the work was spasmodic but in a later letter the company says it could offer Mr K   three to four days work a week at the moment, possibly more, on a 6:30am - 5:30pm basis.

[14]     Were this appeal to be allowed, Mr K   would need to be subject to a 24 hour curfew on a seven day a week basis, subject only to his being able to leave the required address to travel to work and to return.   And there would have to be a named person who  advises the Court that he  understands his  responsibilities in picking up Mr K   at a specific time in the morning, driving him by the most direct route to Atlas Concrete in Takapuna, and driving him back at the end of the day’s work to the Albrecht Avenue address.

[15]     There would also need to be the usual sorts of conditions such that he did not contact witnesses – notwithstanding the principal witness is his mother – and that he refrain from alcohol and drugs and the like.

[16]     Mr Tregonning is not in a position to be able to produce evidence from any named driver stating that he understands his responsibilities and the appeal should therefore be adjourned part heard for that information to be provided.   It can be concluded by any Judge.

.................................................................

HUGH WILLIAMS J.

Solicitors:

Crown Solicitor, PO Box 2213 Auckland 1140

Email:             [email protected]

Legal Services Agency, Public Defence Service, P O Box 90243 Auckland  1142

Email:             [e-mail]

Copy for:

Judge Wade, District Court, Auckland.

Case Officer:              Leroy[email protected]