K v Police HC Wanganui Cri-2009-483-3004

[2010] NZHC 1154

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2009-483-3004

K

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 July 2010

Counsel:         D M Goodlet for applicant

L C Rowe for respondent

Judgment:      7 July 2010

RESERVED JUDGMENT OF DOBSON J

[1]      Mr K   has been remanded in custody on charges of attempted murder, wounding with intent to injure and common assault.   He was declined bail in the Wanganui District Court on 18 December 2009, but has more recently made application for electronically monitored (EM) bail, citing an address occupied by members of his extended family in New Plymouth.

[2]      The   Police   assessment   concludes   that   the   proposed   bail   address   is

“technically feasible” for EM bail, but the Police strongly oppose bail for a range of reasons.

[3]      Mr K   has a previous conviction for manslaughter, so that s 10 of the Bail Act 2000 applies to his application.   The subsections guiding the Court’s considerations are in the following terms:

10Restriction on bail if defendant with previous conviction for specified offence charged with further specified offence

...

(3)No defendant to whom this section applies may be granted bail or allowed to go at large except by order of a High Court Judge or a District Court Judge.

(4)No defendant to whom this section applies may be granted bail or allowed to go at large unless the defendant satisfies the Judge that bail or remand at large should be granted.

(5)       In particular (but without limiting any other matters in respect of which the defendant must satisfy the Judge under subsection (4)), the defendant must satisfy the Judge on the balance of probabilities that the defendant will not, while on bail or at large, commit any offence involving violence against, or danger to the safety of, any other person.

(6)In deciding whether or not to grant bail to a defendant to whom this section applies or allow the defendant to go at large, the need to protect the safety of the public and, where appropriate, the need to protect the safety of the victim or victims of the alleged offending, are primary considerations.

[4]      The   Police   report   explaining   grounds   for   opposing   bail   describes Mr K  ’s previous conviction for manslaughter as arising out of an incident where he and his brother (a co-accused on the present attempted murder charge) first punched the victim and then when he fell to the ground they repeatedly kicked him in the head.  As a result of these injuries, the victim died.  The circumstances of the present alleged offending, as described in Police summaries and a written statement, are chillingly similar.  Since the conviction for manslaughter, Mr K   has also been convicted for participating in an organised criminal group and that conviction relates  to  his  involvement  with  the  Mongrel  Mob  gang  at  the  time  the  child Jhia Te Tua  was  killed  by  Mongrel  Mob  members  in  Wanganui.    Without  an exhaustive analysis of all of Mr K  ’s previous convictions, these two instances demonstrate a propensity for violence which is worrying.

[5]      Both the principal victims of the incidents giving rise to the present charges have expressed concerns about the prospect of Mr K   being granted bail.  The victim in the attempted murder charge (who is a member of Mr K  ’s extended family) has himself relocated to the area proposed for EM bailing.  The provision of statements to the Police by the victims is reasonably characterised by the Police as going against “the code” of the circles in which they live, leaving them vulnerable to retribution.   That prospect is materially enhanced if an attacker identified by their statements is released on bail.

[6]      Ms Goodlet  identified  the  sponsors  for  Mr K    from  the  proposed address to which he would be EM bailed in Court, as well as his own social worker. She characterised the address as currently alcohol free, and one able to provide a measure of support for Mr K   in that he would not be left alone for lengthy periods.  She submitted that he has never been given an opportunity on EM bail and it can therefore not be said that he has failed.

[7]      Ms Goodlet  described  Mr K  ’s  concern  to  be  able  to  support  his partner who is having a baby in four to six weeks’ time as the primary reason for the application.  However, in opposing the application, Mr Rowe argued that this reason did not bear scrutiny.   The partner referred to presently has a protection order in place in respect of Mr K  , and the bail report referred to an extensive family violence history, including a previous assault on her when she was seven months’ pregnant.

[8]      Another matter emphasised by Mr Rowe was that whilst the proposed address was technically feasible for EM bail, the Police had numerous concerns about the inappropriateness of an accused person facing the charges Mr K   does being located at such an address.  It is a household where there has previously been family violence tensions, including in the recent past, the counsellor for the sponsors has expressed reservations and it is inarguable that the presence of a person on EM bail in the house would no doubt add to the stresses there.

[9]      Mr Rowe also highlighted the seriousness of the charges facing Mr K   and the significant outcome for him if he were convicted in terms of a very lengthy

prison sentence. When only some six weeks out from trial, that raises the stakes in terms of the prospect of his breaching the terms of his bail and not appearing.

[10]     Section 10(6) requires primacy to be given to the need to protect the safety of the public and the need to protect the safety of the victims of the alleged offending. Mr K  ’s prospects of discharging the onus on him under that section are, with respect, forlorn.  I am far from satisfied that he would not commit offences involving violence against others, or endanger the safety of other persons, however tight a set of conditions were to apply to any EM bail.

[11]     The timing of this application is somewhat unusual.  Pre-trial applications are to be argued later this month, and the charges are to be the subject of a High Court jury trial in Wanganui in August 2010.  That relatively short period until the charges are scheduled for determination is a further practical factor counting against any grant of bail at this time.

[12]     The application is declined.

Dobson J

Solicitors:

Crown Solicitor, Wanganui