K v Police HC Dunedin Cri-2007-412-43

[2007] NZHC 770

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2007-412-000043

K

Appellant

v

POLICE

Respondent

Hearing:         9 August 2007

Appearances: S Cole for Appellant

R Smith for Respondent

Judgment:      9 August 2007

ORAL JUDGMENT OF HON. JUSTICE JOHN HANSEN

The appeal is dismissed.

REASONS

[1]      K   appeals against the refusal of His Honour Judge O’Driscoll to delete the two conditions imposed upon him when he was bailed on eleven charges.  Those conditions were a curfew and a requirement that he present himself at the door when called on by the police.

K V POLICE HC DUN CRI-2007-412-000043  9 August 2007

[2]      Mr K   faces a total of eleven charges, as I have noted: one of receiving; two of possession of a class B drug; two of possession of a class C drug, and charges relating to the possession of prescription medicines.

[3]      On behalf of Mr K  , Mr Cole has argued that in terms of decisions of this Court in Sherwood v Police HC ROT CRI-2006-463-000007 10 February 2006, and of the Court of Appeal in R v Keefe and Rymer (CA 162/04, 22 July 2004) and R v Fatu (CA 454/05, 15 December 2005) there is no justification to limit or curtail the movements of Mr K   in the way these conditions have the effect of doing.  He referred to, and I concur in, the passages at [6] and [7] of Sherwood:

In R v Keefe and Rymer (CA 162/04, 22 July 2004), the Court of Appeal said that in determining what terms of bail are “reasonable” the Court must balance the likely restrictions on an alleged offender’s liberty (on the one hand) against the interests of the community in ensuring that alleged offenders do not flee, interfere with witnesses or reoffend while awaiting trial (on the other). Viewed in that way, “reasonable terms and conditions” of bail can be seen as part of the process of managing those three bail risks. The Court added that terms of bail should reflect the least restrictive outcome possible consistent with the community’s expectation that adherence to bail conditions will be properly manager: see para [20].

In relation specifically to terms imposing curfews, the Court of Appeal has recently stressed the importance of the guarantee of freedom of movement contained in s18 of the Bill of Rights.  The need to refer to that provision is designed  to  ensure  that  a  Judge,  when  assessing  whether  a  curfew  is required, reflects adequately on the need not to restrain movement unjustifiably: see R v Fatu (CA 454/05, 15 December 2005) at para [8].

[4]      The  Crown  acknowledges  there  must  be  a  necessary  nexus  between  the offending and the conditions imposed.   The Judge obviously took the view that offending of this sort is more likely to occur at night.  Mr Cole takes issue with that, stating there is no evidence of it.   Of course the Judge is an experienced District Court Judge and is entitled to take judicial notice of that particular fact.

[5]      Of more moment, however, is an affidavit that has been filed by the Crown on appeal.   This is from a police constable who investigated a matter on 1 April

2007.  It involved a stabbing that occurred in the north end of Dunedin at 3 o’clock in the morning.  The victim was Mr K  .  He had been stabbed by an associate, a Mr Gordon.  No charges eventuated, but it is apparent that this was a drug deal that had gone wrong in the early hours of the morning.  Mr Cole also submits that this

man has a relatively small record, and in fact has not breached bail previously.  That is so, but the reality is that this man, despite being aged 32 years did not start getting into trouble until 2004.  Since then he has been a persistent offender, particularly in relation to drugs.

[6]      It seems to me the inference drawn by the learned District Court Judge was one that was available to him, and while one is conscious of the requirements that the Court of Appeal has set out in R v Keefe and Rymer, in this case there does seem to me to be a necessary nexus between the offending and the conditions imposed, the interference with freedom of movement can only be said to be reasonable in the context of offending of this sort and this man’s recent background.

[7]      The appeal is dismissed.

Solicitors:

S L Cole, Dunedin

Crown Solicitor, Dunedin