K v Police HC Christchurch CRI 2008-409-135

[2008] NZHC 2471

This case has been anonymized

NOT TO BE PUBLISHED UNTIL FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008-409-000135

K

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 August 2008

Counsel:         R A Peters for Appellant

S-L Litt for Respondent

Judgment:      1 August 2008

ORAL JUDGMENT OF PANCKHURST J

[1]      This is an appeal against a decision of Judge Bisphan in which he declined bail to the appellant.  That decision was given about a week ago on 23 July.  The appellant is charged with two breaches of a protection order alleged to have been committed on 10 July.

[2]      Without going into the detail of the allegations, the complainant (who is present in court today), is the mother of two children of which the appellant is the father.  He has on odd occasions had contact with the children.  He sought contact on

10 July and this was arranged at the home of a friend of the complainant’s.  While he

was there difficulties arose.   He was requested to leave and the highpoint of the

K V NEW ZEALAND POLICE HC CHCH CRI 2008-409-000135  1 August 2008

incident are allegations that he endeavoured to drive his car at the complainant on more than one occasion.

[3]      A complaint was made straight after the event.   However, it was not until

18 July that the appellant was arrested, brought before the Court and remanded in custody, initially by Justices of the Peace.  That was on 19 July.

[4]      Mr Peters made the bail application four days later on 23 July and Judge Bisphan  declined  to  grant  bail.    Essentially  he  did  so  on  the  basis  that  he apprehended there was a real and substantial risk of further offending or of interference with the complainant who is, of course, the principal witness in relation to the breach of protection order charges which await hearing.   I shall not refer further  to  the  terms  of  the  Judge’s  decision.    I  merely  note  that  he  carefully considered relevant matters and ultimately reached a view that there was just cause for continued detention in terms of s8 of the Bail Act.

[5]      The appeal has been presented by Mr Peters essentially on the footing that the Judge over-emphasised the complainant’s concerns and the need for her protection and, in doing so, failed to give sufficient weight to the appellant’s personal situation. He is in regular employment.  This is confirmed by a letter from his employer.  That employment is at risk unless he can return to work soon.   Secondly, he lives in rented accommodation and likewise that accommodation is at risk unless he can commence earning again shortly.  These matters, I note, were referred to by Judge Bisphan.   He was obviously troubled by them, but concluded that they did not outweigh the risks that I have already referred to.

[6]      There have been two developments since the bail hearing.   First of all the case has been given an urgent hearing date on 27 August.  Secondly, the complainant indicates  that  she  has  been  contacted  by the  appellant’s  wife  with  reference  to withdrawing the allegations.  She is not prepared to do this.  The development itself indicates that the risk Judge Bisphan saw with reference to witnesses may indeed be a real one.

[7]      Although   I   have   some   concern   that   the   loss   of   employment   and accommodation may make matters worse and make the appellant an even greater risk to the  complainant,  I am  not  persuaded  that the  Judge  approached  matters incorrectly or that he reached a decision which was not available to him in terms of the Bail Act.

[8]      For those reasons I am not prepared to intervene and overturn the present decision, particularly given that a fixture is less than four weeks away.

[9]      The appeal is therefore dismissed.

Solicitors:

Thompson & Morgan, Christchurch for Appellant
Raymond Donnelly & Co, Christchurch for Respondent