M v Police HC Palmerston North Cri-2008-454-6

[2008] NZHC 230

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2008-454-06

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 March 2008

Appearances: F D Steedman for Appellant

E Killeen for Crown

Judgment:      3 March 2008

ORAL JUDGMENT OF CLIFFORD J

Introduction

[1]      Mr M   faces charges of unlawful sexual connection, indecent assault and burglary.

[2]      These charges arise out of events which occurred in the early hours of Friday

18 January 2008, when Mr M   admits entering a neighbour’s house, occupied at that time by the complainant, a 17 year old young woman who was babysitting. The occupant of the house, the complainant’s sister-in-law, was out socialising with the defendant’s partner.

[3]      The complainant alleges that the defendant – uninvited – entered the bedroom where she was sleeping, woke her and indecently assaulted her, by kissing and

fondling her breasts, and sexually violated her by penetrating her with his fingers.

M V POLICE HC PMN CRI-2008-454-06  3 March 2008

[4]       The defendant has admitted entering the house, but says any sexual activity was consensual.

[5]      Judge Ross declined bail in the District Court here on 31 January   and Mr

M   appeals that decision.

District Court decision

[6]      In declining bail, the District Court Judge noted that it was for the Police to satisfy the Court that there was just cause for continued detention.   From that, obviously correct, starting point, the Judge  first  took  account  of  Mr M  ’s previous criminal history.

[7]      Of  relevance,  this  includes  some,  as  I counted  them,  18  convictions  for offences whilst on bail, in the period 1998 to 2002.  Mr M   also has something of a lengthy criminal record, comprising, again as I counted them, some 31 offences since 1995.   These include two convictions for assault, and some for dishonesty. Since a December 2002 conviction for assault, however, Mr M   has 5 motor vehicle convictions, 4 for driving whilst disqualified, and one for drag racing.

[8]      The Judge was concerned that this history showed Mr M   had regularly failed to comply with directions given to him by the authorities, including the Court, the Police and Probation Officers.  This first established for the Judge a prospect of offending whilst on bail, something which would also make compliance with bail conditions difficult.

[9]      The Judge further noted that the defendant had on two previous occasions failed to answer bail, which – combined with a history of disobedience of Court orders, meant that there was in the Judge’s mind a real and substantial risk of the defendant failing to appear in the future, were he to be granted bail.

[10]     The Judge was also concerned as to the risk of interfering with witnesses, noting that the proposed bail address was next door to the address where the alleged offending occurred.  Although the occupier had moved away, albeit that there might

have been some doubt about that at the time, and it was not clear where the complainant lived additionally, the Judge concluded that the defendant’s physical proximity to the address where the offending occurred, together with the relationship between his partner and the occupier of the house and his previous record, meant that the risk of interfering with witnesses had to be regarded as a real and significant risk.

[11]     The Judge then considered, as he was required to, the victim’s views under s

8(4) of the Bail Act.

[12]     The victim had expressed real concerns that she had been, in her mind, safe as a babysitter, and that that perception had been shattered and if the defendant was released into the community this would seriously affect her ability to move on and put the incident behind her.  In this context, the Judge referred to the trauma for the victim of an accidental meeting with the defendant.

[13]     The Judge, having considered therefore the relevance of each of the three mandatory criteria,  then  referred  to  various  other  relevant  factors  under  s  8(2), including the seriousness of the charges. Finally, the Judge considered, in terms of factors supporting a grant of bail, the estimated time to trial of some 12 months or more.

Approach on appeal

[14]     This  is  an  appeal  against  Judge  Ross’s  decision  where,  exercising  his discretion, he declined to grant Mr M   bail.

[15]     As such, it is well settled that a Judge of this Court should only interfere on appeal if satisfied either that the District Court Judge erred in law, or failed to take into account relevant considerations, or gave undue account to irrelevant considerations, or was plainly wrong.

Submissions

For Mr M 

[16]     In support of this appeal, Mr M   himself provided an affidavit.  In this he admitted that an incident had occurred, but, as I have noted, said the complainant had not told the truth and that any sexual conduct that might have taken place that night had been consensual.  He admitted that he had not initially told the Police the full truth when spoken to, as he was ashamed of having been unfaithful to his partner.

[17]     He explained his earlier criminal record as being associated with the marriage breakup between his mother and father when he was 15 or 16, subsequent drug use by him and associated criminality.  He said that since about 6 years ago, the assault conviction of 2002, he had done what he could to clean up his act.

[18]     He had been in a stable relationship with his partner for some time since then and they had 3 children together.

[19]     He noted his recent convictions were for driving offences.

[20]     He said he had no idea where the complainant, and her sister-in-law, lived. He said he really wanted to be with his partner and his children and was able to work.  He provided a letter of support from the manager of a contracting company who, as I understand it, is the husband of his one of his partner’s sisters with whom he had previously undertaken work on a voluntary basis.  That person, Mr McLean, confirmed that he would be prepared to offer Mr M   employment in the future.

[21]     In  his  submissions  before  me  today,  Mr  Steedman  commented  on  and analysed, from his perspective, the strength of the case.   Although the evidence against Mr M   appeared strong, it was in Mr Steedman’s submission capable of  explanation  in  a  different  light  that  was  consistent  with  his  client’s  current intention of pleading not guilty.  Mr Steedman also urged on me what he considered to be the largely, for want of a better word, historic nature of the appellant’s criminal history and how that history did evidence an effort to embark on a new path since

2000 that, other than as regards the driving offences, would appear to have been largely successful.  Further Mr Steedman submitted again the issue of time to trial and how it would appear that in the District Court in Palmerston it would be not

before January next year, at the earliest, that a trial date would be available, which timing the Crown confirmed.

For police

[22]     For  the  police,  Ms  Killeen  emphasised  that  the  Judge  had  carefully considered the relevant provisions of the Bail Act.  He had not got the law wrong. He had had regard to those matters and to the relevant factual situation in concluding that there were really significant risks as regards each of the three mandatory criteria. His decision was one that should not be interfered with.

Discussion

[23]     The Judge, as is evident from his written notes, did carefully consider the provisions of s 8, as he saw them applying to the facts of this case.

[24]     Taking that decision as a whole, it is clear the Judge was concerned about each of the mandatory risks.  As regards the risk the defendant might interfere with witnesses, the Judge based this on the proximity of the defendant’s proposed bail address to the address where the offence occurred, together with his previous history of failing to comply with bail conditions and the connection between the defendant’s partner and the complainant’s sister-in-law.  In my view the Judge no doubt had in mind that any release on bail would be on a condition of non-association as between the accused, the complainant and her sister-in-law.  The Judge was also concerned to take appropriate account of the views the victim had expressed.

[25]     Having regard to the criteria on appeal, I do not think it can be said that the District  Court  Judge  erred  in  law  or  failed  to  take  into  account  relevant considerations or gave undue account to irrelevant considerations.   I think the question is whether he was wrong to reach the conclusion that he did, having regard to the factual circumstances.

[26]     As I put it to Ms Killeen, in my view it cannot be enough to deny a grant of bail that there is a risk of accidental meeting between an accused and a complainant.

To some extent it would appear the Judge was concerned about such accidental risk. At the same time, however, I am satisfied that he was concerned about a wider range of circumstances than just that.

[27]     Although I acknowledge that the defendant has, it would appear, in recent years made efforts to put his previous criminality behind him, there nevertheless remains on his record, and in my view in what is still a relevant timeframe,  a disappointing occurrence of breaches of bail conditions, failure to answer bail and offending whilst on bail.  I think it was reasonable for the Judge to conclude that the overall pattern was a relevant one, of failing to have regard to orders made by relevant authorities.

[28]     In  light,  therefore,  of  the  mandatory  bail  risks,  and  in  particular  in  this instance, the defendant’s failure in the past to abide by orders of relevant authorities, combined with the fact that there are relationships here between the defendant, his partner, the complainant and one of the Crown witnesses that in my judgment take this outside the situation where a Court was only concerned about the risk of accidental contact, as it were, I am not in a position to conclude that the Judge was wrong to reach the conclusion that he did that, by reference to s 8(1), this was a circumstance where his decision was to be to decline to grant bail.

[29]      I therefore dismiss this appeal.

“Clifford J”

Solicitors:         F Steedman, Palmerston North for the Appellant

Crown Solicitor for the Crown