M v Police HC Auckland CRI 2008-404-59

[2008] NZHC 2231

This case has been anonymized

ORDER PROHIBITING PUBLICATION UNTIL FINAL DISPOSITION OF TRIAL

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-000059

CRI 2008-404-000064

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 March 2008

Appearances: S Lance for Appellant

Ms W Andrews for Crown

Judgment:      14 March 2008

ORAL BAIL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

S Lance, Auckland

M V NEW ZEALAND POLICE HC AK CRI 2008-404-000059  14 March 2008

[1]      On 29 February 2008 Judge Paul in the District Court at Auckland declined bail to Mr M  .   From that decision Mr M   appeals to this Court.   In declining bail the Judge referred to s 8(1) of the Bail Act and concluded that there was a real and significant risk that Mr M   would offend whilst on bail given the history to the matter.  The Judge did not go on to consider the other matters referred to in s 8(2) of the Bail Act.

[2]      In the notice of appeal it is submitted generally that the Judge was wrong in that decision, that the decision was against the interests of justice and that the Judge had failed to take account of the presumption of innocence.  In support of the appeal Mr Lance has outlined in some detail the background in an attempt to explain the offending that the appellant is charged with.

[3]      In summary the appellant is a 43 year old businessman.  He has known and been associated with a Mr Crisp for over 20 years.   They have had a number of business dealings and joint business ventures over that period of time.  About two years ago there was a falling out between Mr M  , the appellant, and Mr Crisp. The falling out has led to litigation in the High Court between the two and their respective interests.   They have adjoining car yards.   Counsel advises that the appellant lives in premises at his car yard.   Counsel submitted that from the appellant’s point of view Mr Crisp had been obstinate and difficult and that a number of these offences arise out of the appellant’s frustration at the attitude of Mr Crisp and his advisors to the resolution of the business issues.

[4]      It is necessary to set out the history of the offending to put this matter in to further context.  On 6 January the appellant was with associates at a bar in Mission Bay.   There was an argument between an associate of the appellant and another group of people.   It is then alleged that the appellant threw a chair towards Mr McFarlane, a person otherwise unknown to him, and that as Mr McFarlane left the bar the appellant told him he was going to come back tomorrow and shoot him.  As a consequence of those actions the appellant has been charged with a Summary Offences Act assault using a chair and also threatening to kill Mr McFarlane.   He

was brought before the Court to answer those charges on 11 January.  At the same time it seems that a further charge, arising out of an  earlier unrelated, incident involving Mr Crisp on 1 November 2007 was laid and put before the Court on the same day.  That is a Summary Offences Act assault charge.  The background to that is an altercation between Mr Crisp and the appellant on 1 November at a car yard in Great South Road.  There was a physical altercation between the two.  The appellant says through counsel that he was in fact assaulted by Mr Crisp.  He denies assaulting Mr Crisp.

[5]      When the appellant was before the Court on 11 January on these charges he was granted bail.  As conditions of bail he was to reside at a specified address and was  not  to  associate  with  the  complainant  and  witnesses.    No  doubt  that  last condition was imposed given the background to the relationship between Mr Crisp and the appellant.

[6]      The next set of alleged offending occurred on 1 February.   Mr Drum, an accountant who had been involved in advising the parties and involved in the dispute between Mr Crisp and Mr M   was at a lunch bar.   It is alleged the appellant came up to Mr Drum, verbally assaulted him and threatened to give Mr Drum two black eyes before the cops came.   He then said he was going to find Mr Drum’s children and he was going to get an associate and come back.   There is some independent evidence of those threats.  As a consequence the appellant was charged with an intent to intimidate by threatening to injure Mr Drum.   He was brought before the Court on that charge on 15 February.

[7]      Also on 15 February and arising out of an alleged incident that occurred on

14 February the appellant faced charges of assaulting Mr Crisp and threatening to kill Mr Crisp’s children.  Those charges arose out of incidents alleged to have taken place on 14 February.  It is alleged that on that day the appellant was at the Great South Road address in Greenlane.   Mr Crisp went outside his premises and the appellant began yelling at him, including threatening that he was going to “kill your kids”.   It is then alleged that Mr M   approached Mr Crisp and attempted to punch  him  with  a  closed  fist.    The  threatening  to  kill  and  the  assault  charges followed.

[8]      When Mr M   was before the District Court on 15 February bail was opposed.  The Judge, however, granted bail against the opposition of the police but recorded that the appellant Mr M   had been warned.  He was further remanded through to appear in the Court on 29 February.   But before that appearance it is alleged that the appellant offended again on 27 February.  It is alleged that on that day the appellant was again at the car yard in Great South Road.  One of the side windows in Mr Crisp’s office at the car yard was smashed.  When Mr Crisp went outside he saw the appellant standing there.  The inference is the appellant smashed the window.   The appellant made  threatening  gestures  towards  Mr  Crisp.    The appellant was charged with intending to frighten Mr Crisp by threatening to injure him.  He was also charged with intentionally damaging Mr Crisp’s building.

[9]      Later that same day it is alleged that the appellant rang the offices of the counsel for Mr Crisp in the civil proceedings and made threats over the telephone. There was more than one call.  During the course of one of them, which had been answered by Mr Dale’s wife who was at the office, it is alleged the appellant said he was sitting outside her daughter’s house and he was going to kill the baby.  Mrs Dale says that the appellant said “I know there are hundreds of police after me, they have been after me all day so I’ve got nothing to lose, I am going to kill the baby”.  The police were called.  About 30 minutes or so later the appellant arrived outside the offices  of  the  barrister.    The  appellant  is  alleged  to  have  been  abusive  and threatening before leaving the premises.  As a consequence of those actions he has been charged with threatening to kill the grandchildren of Mr and Mrs Dale.

[10]     When the appellant was before the Court on 29 February Judge Paul declined bail for the reasons set out above.

[11]     In  support  of  the  appeal  Mr  Lance  has  emphasised  the  presumption  of innocence and has said that the charges are strenuously denied by Mr M   and that he will be defending them.

[12]     Mr  Lance  reminded  the  Court  of  the  presumption  of  innocence.     He submitted  that  the charges  related  to  relatively minor  incidents  and  that  if  jury jurisdiction was chosen to the indictable charges it was unlikely a trial would be

available until next year.   In those circumstances Mr Lance submitted it would be unjust for the appellant to face a longer period of imprisonment in custody pending trial than he was ever likely to receive as a sentence if convicted.

[13]     Further Mr Lance submitted that there was an alternative address available for Mr M   to reside at if bail were granted.   It is the home address of Mr M  ’s parents.  Mr M   Senior has been in Court this morning to support the appeal.   He has written a letter to confirm that he is reasonably familiar with the background to this matter and that if necessary his son could live with him and the appellant’s mother.   Mr M   Senior has also said he would use his best endeavours to ensure that his son would abide with any conditions of bail.  Mr Lance submitted that the concerns the Court could be adequately addressed by conditions of bail.

[14]     The police continue to oppose bail and oppose this appeal.   Ms Andrews noted the serious nature of the threats made, the impact those threats had on the complainants and submitted that there was a pattern of conduct which must leave the Court concerned that conditions of bail would not adequately address the risks that the appellant posed if granted bail.  Ms Andrews submitted that there was a strong case  in  relation  to  each  of  the  charges  and  there  was  independent  evidence supporting the police case in addition to the complainants.   She submitted that a number of the charges were moderately serious.

[15]     As to delay and time in custody she submitted that a summary offences hearing could be heard in June and that in any event it was likely, given the nature of the charges, that a significant period of imprisonment would be imposed if the appellant was convicted.

[16]     I agree with Judge Paul that there is no real risk or evidence of risk that the appellant may fail to appear in Court if the appeal were granted.  The Court however must be concerned with the possibility of the appellant interfering with witnesses or offending whilst on bail.   In my view there is a real and significant risk that if granted bail the appellant would interfere with witnesses or would offend again.  His pattern of conduct throughout February in particular confirms that that risk is real

and significant.  There is a common thread running through the alleged offending of threats to kill children of the complainants.  There is also a common thread of threats towards people associated with Mr Crisp in relation to the dispute between Mr Crisp and  Mr  M  .    The  threats  have  not  been  restricted  to  his  former  business associate Mr Crisp but have extended to professional people involved in the dispute, both Mr Drum and Mr Dale’s family.  Even accepting the presumption of innocence the Court is entitled to take account of that commonality of alleged offending by the appellant.    It  is  also  relevant  that  the  offending  is  supported  by  independent witnesses.  By way of example, independent facts such as the appellant’s appearance at the offices of Mr Dale shortly after the threatening telephone call on 27 February to Mrs Dale.

[17]     I accept that taken on their own the offences might be regarded as towards the lower end of the scale but taken together there is a real risk of escalation in offending in the future.   Also, when taken together the offending becomes more serious both in respect of the risk the appellant proposes and in terms of any ultimate sentence.

[18]     It also appears there is a strong case in this appeal that the appellant has breached bail conditions that, in accordance with s 8(3), directly relate to the risk of interference with witnesses and also the risk of offending whilst on bail.   The appellant  has  ignored  the  warning  that  the  Judge  gave  him  on  15  February. Following that warning, within two weeks he was again at the premises of Mr Crisp and again allegedly offended against Mr Crisp and his property.  Further it is alleged that on the same day he made a threat to the family of Mr Crisp’s legal advisor, that against the clear warning and in the knowledge bail had been opposed.

[19]     It is said that the fact he has spent time in custody has caused the appellant to reflect on his position.  I am not satisfied however that that is sufficient in the present case to answer the real and significant risks of interference and further offending given the background to this offending.  The Court can have no confidence that he will not breach conditions of bail.

[20]     The matter of principal concern is the length of time that Mr M   may be required  to  spend  in  custody pending  a  hearing  on  the  charges  he  faces.    The summary matters can be dealt with in June. That is not so far away to cause the Court to review the position.   In terms of the indictable offences the matter might well be reviewed following depositions when the strength of the case against Mr M   can be more appropriately addressed, and in light of the then likely hearing date for the trial if there is to be one.

[21]     In summary, however, I am satisfied that the Judge in the District Court was right to refuse bail in this case.  Despite Mr Lance’s thorough submissions in which

he has said everything that could be said for the appellant the appeal is dismissed.

Venning J