L v Police HC Wanganui CRI-2009-083-456

[2009] NZHC 1605

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2009-083-456

CRI-2009-083-726

L

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 March 2009

Counsel:         D M Goodlet for applicant

H C Mallalieu for respondent

Judgment:      30 March 2009

JUDGMENT OF DOBSON J

[1]      On 13 March 2009, the Police consented to an application for bail made at that time on behalf of Mr L  , subject to strict conditions.  Those were:

To live at the address of 16 White Street, Wanganui

To be and remain at 16 White Street, Wanganui 24 hours a day

To present self at door if called upon by Police

Not to communicate or contact or attempt to communicate or contact either directly or indirectly with Misty L   or Shane Pomana

Not to consume or possess alcohol or non prescription drugs.

L V NEW ZEALAND POLICE HC WANG CRI-2009-083-456 30 March 2009

[2]      Mr L   is facing charges of producing cannabis oil, laid indictably, plus cultivating cannabis and burglary.  He has a lengthy list of previous convictions, and also relevantly has a quite substantial list of offences committed whilst on bail on previous occasions.

[3]      He was arrested on the morning of 27 March 2009 for being in breach of the

24 hour curfew imposed as a condition of bail granted on 13 March 2009.

[4]      There is a material difference between the Police view of the circumstances of this breach, and those contended on behalf of Mr L  .

[5]      Mr L  ’s position is that he had obtained consent to leave the address to which he has been bailed to walk to the Probation Office for an interview with a Probation Officer, and then to walk back to the residential address.  He says that in the course of adopting the safest pedestrian route between those two points, he was apprehended by Police, who at first acknowledged that the Intelligence Section of the Police had granted permission for Mr L   to walk to the Probation Office as he was doing.  Mr L   says he then asked the Police apprehending him if they could facilitate his deviating to get a bank card that he thought would be in a car belonging to a friend of his partner that he expected to find at an address in Gloucester Street. Mr L   says the Police dealing with him at the time agreed to his making that deviation, and only thereafter was he arrested for breach of the terms of his bail.

[6]      The Police version of events is that Mr L   was apprehended walking in a direction inconsistent with the route that he would take from his residential address to the Probation Office.  The Police say that Mr L  ’s explanation at the time was that he was on his way to the Gloucester Street address, having obtained permission from Police Intelligence Section to do so, when in fact the only permission that had been granted was for a trip directly from his residence to the Probation Office, with the point of apprehension being inconsistent with a pedestrian journey taking that route.

[7]      It is unnecessary to resolve this factual difference, and I did not hear any evidence about it.  The thrust of Ms Goodlet’s submissions in support of bail on the

previously granted terms was that the Court could not properly find, under s 12(5) of the Bail Act 2000, that the circumstances of this breach of the strict bail conditions gave rise to the prospect that Mr L   might commit, whilst on bail, the serious offences contemplated by that subsection.   More precisely, that section places the onus on the defendant seeking bail to establish on the balance of probabilities that he will not, while on bail, commit any offence involving violence against, or danger to the safety of, any other person, or burglary or any other serious property offence.

[8]      I indicated at the conclusion of the short hearing that I was satisfied that the circumstances of the particular breach did not change the bail assessment materially. I am therefore satisfied on the balance of probabilities that this conduct does not suggest Mr L   will commit serious offences whilst on bail.

[9]      Given   his   lengthy  criminal   history,   including   numerous   instances   of offending whilst on bail, it must be very clear to Mr L   that he is only being given another  opportunity on  bail  on  this  occasion  because  of the  relatively harmless circumstances in which the breach has occurred.  He accepted that he now has to be absolutely 100 percent in compliance, or he will not be given another chance.

[10]     I accordingly directed that Mr L   was again to be granted bail on the same terms as applied on 13 March 2009.

Dobson J

Solicitors:

Debbie Goodlet, Wanganui for applicant

Crown Solicitor, Wanganui for respondent