L v Police HC Wellington CRI 2008-091-2048

[2008] NZHC 1019

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2008-091-002048

L

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 July 2008

Counsel:         R Stevens for Appellant

J Murdoch for Respondent

Judgment:      2 July 2008 at 4.00 p.m.

JUDGMENT OF SIMON FRANCE J

[1]      Mr L   is charged with a variety of offences arising out of an assault on his de facto partner of 4 years.  The couple have a child.

[2]      Whilst  attending  a  party  together,  an  incident  arose  which  saw  the complainant running down the street to get away from Mr L  .  He chased her, and is alleged to have violently assaulted her.   It is said that she became unconscious. The partner says she has little recollection of it, but there are civilian witnesses to the

events.

L V NEW ZEALAND POLICE HC WN CRI 2008-091-002048  2 July 2008

[3]      The Appellant was admitted to bail on 30 May 2008.  The offending occurred on 24 May and I infer from the file that that was the original bail hearing.  Bail was opposed.

[4]      I do not have a copy of that bail ruling but can indicate that the bail was granted on conditions that involved the Appellant living in the Porirua area, apparently with his employer.

[5]      One of the conditions reads:

“Not to communicate or contact or attempt to communicate or contact either directly or indirectly with the complainant and/or any Crown witness; and/or by any means including text messaging.”

Another condition states that the Appellant is not to enter “Waihemo Street, Porirua”

which is the address of the complainant.

[6]      The Appellant seeks to have the conditions which prevent him contacting the complainant, i.e. his de facto partner, deleted.  The complainant has filed a affidavit in Court indicating that she does not feel concerns for her safety, and confirming that she had taken no legal steps against him for her protection.  She states that prior to this incident Mr L   was a model father and partner.  She confirms she has only vague memories of what occurred on the night, but reflects that there was poor conduct on the part of both of them.  She notes that Mr L  ’s father lives close by and has been a regular visitor to their home.   She is anxious to resume the relationship.

[7]      The application for variation came before the District Court on 11 June 2008. It was opposed.  The District Court Judge notes that in a letter written to the Court (the letter is the prelude to the affidavit currently before this Court) the complainant expressed her desire to have the Appellant with her but also describes the assault as “brutal and serious”.

[8]      The Judge concluded:

“They have been in a relationship for a number of years and they have a young child.  However I am just not satisfied that taking out the condition

not to have any contact at all will mitigate the real, what I see as a real and significant risk of offending or interference.  She is a witness.”

Submissions on Appeal

[9]      Appearing for Mr L  , Mr Stevens focussed initially on the District Court Judge’s reasons for rejecting the change of condition.  He identified, correctly, that the primary concern of the Judge was the seriousness of the offending, and the consequent risks of re-offending and interference with a witness, namely the complainant.  Mr Stevens submitted, and it is not disputed, that the basis for those concerns must lie in the offending itself because there is nothing in the general material about Mr L  , or in a very limited past criminal record, that would give rise to those concerns.

[10]     Addressing then those concerns Mr Stevens submitted that concerning the risk of re-offending, there was no suggestion of violence in the past or since.  It was an  incident  where  both  were  grossly intoxicated,  and  both  are  remorseful.    He referred to the affidavit filed in this Court by the victim in which she notes that she has no concerns for her safety at all, and that she has not sought any other form of protection.  She indicates that Mr L   has always been a good partner and father, and she wishes to resume contact.

[11]     Concerning the risk of interference with witnesses, Mr Stevens emphasises that this is not the typical case.  First in communications with the Court, the victim has not resiled from the fact that the assault occurred.  She has indicated all along that she herself has little memory of it, due to her state of intoxication, but she is not in denial that the offending occurred.   Further, unusually, the primary prosecution case rests on civilian witnesses who are unconnected to the parties.  The assault took place on a road, and was witnessed by members of the public.  It follows, submits Mr Stevens, that the risk of interference with a witness is much reduced in this case in the sense that even if the complainant decided not to testify, and there is no suggestion of that at this point, it would not be particularly significant to the Crown case.

[12]     On   behalf   of   the   Respondent,   Ms Murdoch   agreed   that   the   risk   of re-offending and interference were the primary concern of the Judge.  She submitted that these concerns are present in such cases and were validly taken into account by the Judge.   She properly referred to the seriousness of the assault that occurred, whilst acknowledging that the circumstances do have the unusual features referred to by Mr Stevens.  She noted as had Mr Stevens that discussions have been on going, and that a resolution of the situation is anticipated by both parties.

Decision

[13]     I have not found the matter easy.   I begin by reminding myself that is an appeal  from  an  exercise  of  discretion,  and  arises  in  an  area  where  there  are significant public concerns.  The Courts have always reflected those concerns, and in my view rightly take a conservative approach about permitting the alleged offender and the complainant to resume contact until there is  a formal resolution of the existing proceedings.   The reality is that contact will always carry a risk of “interference” with a witness, even if that interference is not direct and threatening. It is also often the case that these incidents arise from the circumstances of the relationships, and the stresses involved in the participant’s lives.   Often there are problems such as alcohol.   Until the Court has evidence of steps being taken to address these situations, then at least for the time that the matter is before the Court it is in my view right to recognise the inherent risks of repeat offending and interference, and be conservative.   Often it will turn on the capacity to impose effective conditions.

[14]     That said, every case must be considered on its merits.  The concerns in the present case are twofold.  Concerning re-offending, I accept that from the material it appears  that  this  assault  was  out  of  character  and  an  isolated  event.    One  can therefore have a reasonable level of confidence that the risk of a further incident of violence is much less than commonly appears the case.  On the other hand, however, the violence that was used was significant, and it is apparent from the resulting scuffles with the Police that for that period Mr L   was significantly out of control.

[15]     Concerning the risk of interference, I accept that the fact that the complainant is not the primary witness is a matter to be put into the mix.  It lessens the concerns one would normally have about the proper processes being subverted.

[16]     I  also  take  into  account  that  the  couple  have  a  child,  and  if  what  the complainant says is an accurate general summary of their relationship, and the form that relationship will take should contact be resumed, then one is loathe to prevent the family unit being reunited.

[17]     It  seems  that  the  unresolved  issues  between  the  parties  concern  the appropriate level of charging for this offending.  That is not a matter for the Court. Whatever the correct label, the common accepted facts indicate an attack of some violence in a public street.   It is this factor which leads me to the conclusion that maintenance of the non-contact condition was an available exercise of discretion notwithstanding the particularly features of this case.  The re-offending risk, though arguably smaller, relates to a very serious assault.  It is a situation where different Judges may have reached different conclusions, and that being my assessment, the

proper outcome is to decline the appeal.

Simon France J

Solicitors:

R Stevens for Appellant
J Murdoch for Respondent