M v Police HC Palmerston North CRI 2008-454-40

[2008] NZHC 1289

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2008-454-40

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 August 2008

Counsel:         J P Dallas for Appellant

E J McCaughan for Respondent

Judgment:      14 August 2008 at Oral

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an appeal against the refusal of bail.

[2]      The  appellant  faces  trial  on  charges  dangerous  driving  causing  death, dangerous driving causing injury and driving while disqualified.  Trial has been set for 24 November 2008.  Bail was granted when the appellant first appeared in July

2007.  The appellant breached his bail conditions by, inter alia, moving to the South Island without obtaining an appropriate variation of bail.  He was apprehended and bail was declined in September 2007.  A further bail application was made and heard on  23  June  2008,  when  bail  was  granted.    Judge Dawson,  who  dealt  with  that

application, noted that the Judge who had declined bail in September had done so “in

M V POLICE HC PMN CRI 2008-454-40  14 August 2008

quite emphatic terms”.  Judge Dawson noted the additional period spent in custody and described that as a wake up call to the appellant so that if he was granted bail he could be relied upon to comply with strict conditions knowing full well the outcome that would follow if he breached bail.   In  granting bail the Judge said:   “It  is absolutely essential that you strictly comply with the conditions that I am going to impose because if you don’t there is one place where you will be kept until the trial is over.”

[3]      Despite that clear warning, there was a further breach of bail.  The appellant appeared again on 2 July, following his arrest for breach of bail, in not having been present at his nominated address, a room at a hostel, when a check was made. Judge Ross,  in  refusing  bail,  referred  to  the  warning  which  had  been  given  by Judge Dawson and said:

[5]       It could not have made matters any clearer.  The only matter that is raised is as to a change in room at Shepherds Rest, a kind of hostel in Andrew Young Street, Palmerston North.   Initially the bail was for him to be in Room 2.  A change was notified, it became Room

11, and when his curfew was checked at 12.57 on 1 July he was not in  that room.    Now  the  explanation  that  is  made  is  a  modestly innocent enough one in itself, that he said that he was in Rehana’s room, number 18, playing Playstation 2.   However, his obligation and his strict obligation is to be where he is required to be.  It is not for  police  to  go  up  and  down  every  room  at  Shepherds  Rest, checking to see where M   is.  He is not where he is meant to be.

[6]It would be altogether too facile and simple to say that bail is being refused to him because he was not in his room at the hostel.  That is true, but it is because of this significant background to this matter which brings the case to this point and that that warning was given that in my view it requires to be enforced.  I cannot have confidence on the basis of the record and this relatively simple breach so soon after Judge Dawson had spoken to him and there have been a hotly contested bail application.  I cannot understand why he should risk the  continuation  of  the  remand  in  custody.    It  is  another  silly decision on his part of which there has been numerous since the time of his first release on bail.

[4]      But for one matter, I would have no hesitation in dismissing the present appeal.   There had been several breaches of bail, the consequences of further non compliance had been expressly spelled out and the appellant chose to flout those conditions.  Counsel submits that the breach of bail was minor, in that the appellant was at the time in the hostel, but in another room.  That submission was expressly

dealt with by Judge Ross, in the passage which I have cited.   That view of the seriousness of the matter which was a view which he was entitled to take, and I would not disturb that exercise of discretion of the Judge.

[5]      The one matter which does require consideration is the potential effect of s 15 of the Bail Act.  The appellant was born on 10 August 1988.  Accordingly, at the time of the hearing before Judge Ross, s 15 applied.  There is nothing in the sentence notes to suggest that Judge Ross gave consideration to the appellant’s age when he dealt with the bail application.   It was referred to in counsel’s submissions and in Judge Dawson’s  decision  which  Judge Ross  referred  but  there  was  no  specific consideration of s 15.  Under s 15 the Court was required to release the appellant on bail unless, in its opinion, no other course was desirable, having regard to all the circumstances.   Although the appellant had committed several breaches of bail, it may be arguable whether that stringent test had been satisfied.   On that basis, I would have been inclined to remit the matter for reconsideration, having regard to s 15.  However, the appellant has now turned 20 years of age and no longer has the benefit of s 15.   If I were to remit the matter for reconsideration by the District Court, or if I were to determine the question of whether bail should be granted on a de novo basis, s 15 no longer applies.

[6]      I consider that, in the circumstances, the better course, having regard to the position under s 15, is for me to approach the question of bail afresh.   As I have indicated, I would not on any grounds other than the potential application of s 15, disturb the exercise of the discretion by Judge Ross.   But I adopt the approach of considering the matter afresh.   Approaching the matter de novo, I must consider whether there is just cause for continued detention under s 8.   Under subs (3), the breach of bail conditions may only be taken into account in so far as it is relevant to whether there is a real and significant risk that the defendant may fail to appear, may interfere with witnesses or evidence, or may offend while on bail.  I may also take into account the matters in subs (2).   The significant breaches of bail which have occurred, including but not limited to that which has led to the appellant’s re-arrest in July, are such that there can be little confidence that the appellant would adhere to any bail conditions which might now be imposed.  Counsel for the appellant submits that the breaches, other than the present were some time ago when the appellant was

more youthful and not responsible.  There is little evidence on the circumstances that he has become more responsible with an increase in his age.  He was clearly warned of the probability of what would happen if there was a breach and there has been a breach nonetheless.  The risk of failure to appear must, on that analysis, be assessed as real and significant.

[7]      The appellant also has a considerable history of offending while on bail and counsel for the Crown relies also on that ground.  I consider that the history is such that the risk must be assessed as real and significant.  Counsel for the Crown also submits that there is a risk of interference with witnesses in that he has contacted some time ago, his partner who was a passenger in the car at the time and a potential Crown witness.   I would place less reliance on that but added to the other two matters that does tend to reinforce the view that a risk may be present on that account.

[8]      As to the other factors, Mr Dallas submits that the Crown case is not a strong one.   Mr McCaughan for the Crown submits that the case is strong.   I make no assessment of it and do not rely on the strength of the case one way or the other.

[9]      As to the length of time before the trial, the appellant will in total have spent a considerable period in custody.   However, that has resulted essentially from his own breaches of bail in that had the conditions of bail been complied with he would have been on bail from essentially his first appearance.  The time which is to elapse from now until trial does not lead me to the view that consideration to bail needs to be given on that account.

[10]     For these reasons, I consider that there is just cause for continued detention and the appeal is accordingly dismissed.

“A D MacKenzie J”

Solicitors:         Crown Solicitor, Palmerston North for Respondent

J P Dallas, Barrister, Wellington for Appellant