K v Police HC Rotorua CRI 2007 463 122

[2007] NZHC 1106

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2007 463 122

K

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         18 October 2007

Appearances: B Lawson for Appellant

M Corlett for Crown

Judgment:      18 October 2007

ORAL JUDGMENT OF RONALD YOUNG J

[1]      This is an appeal against a refusal to grant bail to the appellant who faces charges of wounding with intent to cause grievous bodily harm and assault with a weapon.   The Judge concluded in the circumstances the evidence was strong and there remained a potential danger from the appellant to both the complainant and the complainant’s partner.

[2]      The  Crown  alleges  that  these  events  arose  from  a  previous  relationship between the appellant and the complainant.   It says the appellant attacked the complainant at a house in Ngongotaha.  They say she struck the complainant with a

pool cue and then attacked him, initially with a knife with a closed blade, and then

K V NEW ZEALAND POLICE HC ROT CRI 2007 463 122  18 October 2007

later with an open blade.   She kicked him on a number of occasions causing unconsciousness on two occasions.  The appellant denied to the police, and denies now, that these events occurred in this way and says she was acting in self-defence.

[3]      The Judge, in his decision in the District Court, expressed concern that the appellant’s focus was on the complainant’s girlfriend.   He said there had been a considerable past of domestic violence between the parties although it mostly involved the complainant as the perpetrator.  He said he assessed the Crown case at that   stage   as   strong   and   the   appellant’s   intention,   which   focused   on   the complainant’s partner, as troubling, and given the seriousness and strength of the prosecution case and the concern with the complainant’s girlfriend he refused bail.

[4]      The Crown, and counsel for the appellant, had an opportunity before me today to discuss matters.  Obviously the prime concern was the alleviation of danger to the complainant and his girlfriend from the appellant.

[5]      The Judge had some material before him which may have created a rather misleading impression  as  to  the parties’  past.    A  Risk  &  Lethality  Assessment Worksheet was completed by a constable.   Unfortunately, the constable failed to complete that form in an adequate way and misunderstood the arithmetical calculations required.  The risk score that he assessed was a “high risk”, whereas the Crown accept today that score was incorrect and the risk is substantially lower than the constable’s assessment.  It is self-evident that there is a high responsibility on the police to provide information to the Courts that is accurate.  One has the impression reading this report that the constable did not entirely know what he was doing.  He added together factors which should have been subtracted.  It is obvious that he was reluctant to identify categories which might reduce risk.  This is clear not only in the worksheet but also in the identification of risk factor background.  No more, for this purpose, need be said about that other than the Judge may have had an inflated impression of the risk from the appellant.

[6]      It is clear from the background reports with respect to previous domestic incidents that all have been as a result of the actions of the complainant where the appellant has been  the  victim.    She  has,  therefore,  no  relevant  past  conduct  or

convictions with respect to domestic violence, although she does have some minor previous offending.

[7]      In those circumstances, given the conditions of bail to be imposed which I understand the prosecution accept will go as far as they possibly can in restricting the complainant’s movement, and give reassurance to the victim and his girlfriend in this case, it is proper, in my view, that bail be granted.  The appeal is therefore allowed.

[8]      I am satisfied that the risk factor, which should be the only basis on which bail could be refused in this case, is able to be satisfactorily met by bail conditions. The bail conditions will restrict Ms K  ’s movements and prohibit her contact with the complainants.  In particular, they are:

(1)She is to reside at 17 Clousten Crescent, Rotorua and to remain inside that house from 8.00 p.m. to 7.00 a.m.   In addition, the appellant (should the police call) will make herself available at the door of the residence so the police can adequately check her compliance with bail.

(2)She is not to contact the complainants Alan Richard McCullum in any way, nor Rachael Mohi.

(3)She  is  not  to  go  within  five  kilometres  of  45  Cadelonia  Place, Ngongotaha or 505 Tauranga Direct Road, Hamurana.

(4)       She is not to consume any alcohol or drugs.

“Ronald Young J”

Solicitors:

Crown Solicitor, Rotorua