L v Police HC Christchurch CRI 2008 409 142

[2008] NZHC 1288

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008 409 142

L

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 August 2008

Counsel:         J D Bell for appellant

K B Bell for respondent

Judgment:      14 August 2008

ORAL JUDGMENT OF DOBSON J

[1]      When Mr L   appeared on 12 June 2008 on charges of threatening to kill his then partner (“the complainant“) and being in possession of a knife in circumstances showing an intention to use it offensively or to commit an offence, he was bailed on conditions including that he was not to attempt to communicate, either directly or indirectly, with the complainant.

[2]      After that Court appearance, the complainant obtained a temporary protection order against Mr L   which is to run for a period of three months from either 7 July

2008 or a date shortly thereafter when the order was served on him.

L V NEW ZEALAND POLICE HC CHCH CRI 2008 409 142  14 August 2008

[3]      Notwithstanding those constraints, Mr L   is alleged to have approached the complainant at the Christchurch Casino on the evening of 30 July 2008, and made a number of attempts to speak to her.  The complainant alleges that he continued to harass her for a period, but after casino staff were alerted Mr L   was asked to leave the premises, and apparently did so.

[4]      The complainant further alleges that Mr L   telephoned her at home on the afternoon of 31 July 2008, in which conversation he is alleged to have spoken in an aggressive manner and threatened the complainant’s family in China before hanging up.

[5]      Those incidents have led to two further charges of contravening the terms of the protection order under ss 19(2)(b) and (e) of the Domestic Violence Act 1995. Those charges carry maximum penalties of six months and two years’ imprisonment respectively.

[6]      When Mr L   appeared on the later charges in the Christchurch District Court on 1 August 2008, the Police opposed bail and he was remanded in custody.  There is a suggestion in the remarks on his bail application by Doherty DCJ that the appropriateness of bail might be revisited at a status hearing on 4 August 2008. Mr Bell advised this morning that the status hearing was conducted by another Judge who was not prepared to entertain any argument on the appropriateness of the continued remand in custody.

[7]      The present appeal against that refusal to grant bail was pursued with the strong support of Mr L  ’s employer, Mr Chen.  A letter of support from Mr Chen accompanied submissions on behalf of the appellant, vouching for Mr L  ’s good character and hard-working habits.  Mr Chen was in Court this morning.

[8]      It was argued for Mr L   that the contact with the complainant at the Casino occurred because Mr L   did not understand the terms of his bail and the protection order to prohibit contact in a public place.  I was assured that he is now well aware of the full extent of those constraints, and will abide by them.

[9]      However, potentially inconsistently with that submission, I was also advised by Mr Bell that Mr L   has instructed him to challenge the grounds for the interim protection order, apparently because Mr L   disputes the complainant’s allegations as to the nature of the conduct described by her to justify the application for that order. Seeking removal of the order does infer a wish to be free to have contact with her again.

[10]     Mr L   also denies that the telephone call of 31 July 2008 occurred at all.  It was accordingly argued that the District Court had overstated the risk of Mr L   attempting to contact the complainant, which it was submitted no longer existed now that he appreciated the full extent of the constraints on him.

[11]     It was also argued that the complainant’s concerns about the risk of Mr L   seeking further contact with her were not grave concerns because she accepted that she was “not concerned for her immediate safety”.

[12]     The prospect that Mr L   genuinely did not understand the full extent of the constraints on him, and that he is therefore deserving of another opportunity to demonstrate his commitment to stay away from the complainant, deserve a reconsideration.  However, in the end, recognition of the risk that, despite himself, Mr L   may pursue contact with the complainant has to tell against his appeal once it is measured against the mandatory and discretionary factors in s 8 of the Bail Act

2000.

[13]     The offences allegedly occurring whilst he was on bail are laid under the Domestic Violence Act 1995.   Section 49 of that Act, which renders breach of a protection order an offence, triggers s 8(5) of the Bail Act 2000, making protection of the victim of the alleged offence the Court’s paramount consideration.   That obviously elevates the weight to be given to the complainant’s views beyond the already mandatory obligation under s 8(4) of the Act.

[14]     In the end, I find that consideration compelling against the appeal.  Breach of the protection order, in whatever circumstances, is to be taken very seriously and

considerably more than can be advanced for Mr L   in the present circumstances would be needed to outweigh that consideration.

[15]     Here, I am also obliged to recognise that there is indeed a risk that Mr L   will interfere with the complainant and, in doing so, a risk that he may re-offend while on bail which I am required to have regard to under s 8(1) of the Bail Act.

[16]     There is also the factor that he did offend whilst on bail, to which I have regard under s 8(2)(e).

[17]     A  date  has  been  set  for  the  defended  hearing  of  these  charges  on

19 September next, and whilst that is no doubt a long time to wait for both Mr L  , and  for  Mr Chen  as  his  loyal  employer,  in  the  overall  assessment  of  the circumstances that is by no means an undue delay in getting a determination of the charges.  Accordingly, the projected period on remand in custody does not alter the balance of my consideration.

[18]     Accordingly, the appeal is dismissed.

Dobson J

Solicitors:

Jared Bell, Christchurch for appellant
Raymond Donnelly & Co, Christchurch for respondent