M v Police HC Christchurch CRI 2006-409-222

[2007] NZHC 2136

This case has been anonymized

NOT TO BE PUBLISHED UNTIL FINAL DISPOSITION OF TRIAL

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2006-409-000222

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         23 August 2007

Counsel:        P H B Hall for Appellant

C E Butchard for Respondent

Judgment:      23 August 2007

ORAL JUDGMENT OF PANCKHURST J

[1]       This is an appeal which involves an anxious decision concerning bail.   The appellant, Mr M   , awaits trial on five counts of rape.   The allegations are that between April and November 2006, at a time when his relationship with the complainant   was   obviously   disintegrating,   he   forced   himself   upon   her   and committed rape.

[2]       The first two allegations concern a period when the two were living under the same roof, although on the second occasion Mrs M   was sleeping in a different room.

DEANE M   V NEW ZEALAND POLICE HC CHCH CRI 2006-409-000222 [23 August

2007]

[3]       The third allegation relates to a visit by the appellant to the house of a friend of the complainant, ostensibly in relation to childcare but where it is said a further incident of rape occurred.

[4]      The fourth was at a cottage rented by the complainant, to which the appellant went to discuss whether she should return to the family home and he should leave.

[5]       The fifth occasion in November 2006, and by far the worst in terms of the allegations, is that the appellant late at night went to the family home (to which the complainant had returned) and entered her bed naked and committed rape.   It was this final incident which precipitated a complaint to the police and resulted in the appellant being interviewed on 14 November.

[6]      He was also served with a trespass notice relating to the complainant’s place of work.    Yet, a day later on 15 November, the appellant made an endeavour to contact the complainant, not at her place of work but at a home of a friend where she was sheltering.   Ultimately the appellant was arrested on 17 November and he has been in custody awaiting trial ever since.  The trial date is 10 December 2007 in the District Court.

[7]         It is the background to which I have just referred, and the nature of the complainant’s allegations, which makes this an anxious decision.    Bail has been considered in the District Court both in November and a week or so ago.   Judge Radford declined bail in November 2006.  Chisholm J at the beginning of December

2006 upheld that decision.    The matter came back before me in July of this year when I declined to consider it on the basis that there should be a fresh application made in the District Court.   That occurred before Judge Callaghan on 8 August, culminating in a closely reasoned decision in which he also declined bail.

[8]       The case for bail is put on the footing that if granted a release the appellant will reside with his parents on their farm near Seddon.  Mr and Mrs M   senior are respected members of the community and there is no question that their home is a suitable bail address.   The real issue is whether, if released, the appellant would pose an unacceptable risk in relation to the complainant.

[9]      In that regard there is a complication in that s10 of the Bail Act applies.  In

1987  the  appellant  was  convicted  on  a  charge  of  injuring  with  intent  to  cause grievous bodily harm, although he received a sentence of only six months periodic detention.      Nonetheless the charge triggers the operation of s10, with the consequence that Mr M   faced an onus in the District Court of satisfying the Judge, on balance, that if granted bail it was probable that he would not commit an offence of violence.  Realistically and appropriately the Judge said the only risk that needed to be considered was that to the complainant.

[10]     Mr M   does not have a significant list of previous convictions.  He has a few driving  convictions,   the   1987   conviction   to   which   I  have  just   referred   and another  in  that  year  for  common  assault,  when  apparently  he  assaulted  his  co- offender in relation to the injuring offence.  Hence, one blemish aside, he essentially has a reasonable past record.

[11]     Judge Callaghan was significantly influenced by the most recent information as to the complainant’s perception and fears.   Mrs M    remains concerned for her welfare if bail is granted.  In a letter from the victims advisor dated 20 June, she set out the basis for her concerns.   In particular, she does not consider that, even if stringent bail conditions were imposed, centring on a requirement that the appellant live at Seddon and only come to Christchurch for court appearances or to consult counsel, thereby her safety would be assured.

[12]      The Judge referred to Mrs M  ’s concerns at a number of points in his bail decision.  In the result he said this:

[10]      The end point that I have reached in my mind is that the accused has not satisfied me on the balance of probabilities that he will not commit an offence involving violence against the complainant.   Even if he had, given that the trial is now some four months away, given the concern and fear held by the victim as echoed in the updated letter, it is my assessment quite independently of the subsection (5) consideration, that the public interest warrants a further remand in custody given the seriousness of the offending and what is alleged to have occurred. Bail is refused.

The concluding aspects of that paragraph attracted my attention.   The observation that  even  if  the  appellant  had  met  the  onus  upon  him  it  may  nonetheless  be appropriate to decline bail to secure the complainant’s peace of mind does not seem

to me to accord with the requirements of the Bail Act, and of s10 in particular. Those provisions certainly require that the protection and safety of  a victim are primary considerations.  But I am not sure that if a Judge is satisfied in a case such as this that a defendant would not commit any offence of violence if granted bail, it still remains appropriate to order a remand in custody.

[13]      Of course the Judge was not satisfied with reference to the test in s10(5). That therefore is the focus of the appeal.  Can it be said that his finding in that regard involved a failure to bring to account some relevant consideration or that the finding is clearly wrong?

[14]     I accept that the proposals made by the appellant do amount to a substantial case for a release on bail.   As I have already said he has a home to go to, it is an extended distance away from Christchurch and additional safeguards can be crafted with reference to his occasional return to Christchurch for trial-related reasons.

[15]      As against that are the complainant’s concerns based upon the history of events which form the basis for the charges and which demonstrate, if the complainant’s account is sustained, a very calculated and frightening course of conduct on the appellant’s part.

[16]     I am very concerned that he will have been in custody for over 12 months by the  trial  date.    However,  I  am  not  persuaded  that  the  view  reached  by  Judge Callaghan was clearly wrong, or that he failed to give due weight and attention to the proposals which were before him with reference to a release on  bail.

[17]     It follows that the appeal must be dismissed.

Solicitors:

Pip Hall Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent