M v Police HC Wellington CRI-2009-435-3

[2009] NZHC 444

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-435-3

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21 April 2009

Appearances: J K W Blathwayt for the appellant

J M Webber for the Crown

Judgment:      21 April 2009

ORAL JUDGMENT OF CLIFFORD J

Introduction

[1]      Mr M   faces charges of injuring with intent to injure and driving under the influence of alcohol.

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

27 March 2009.  At that time, Mr M   was driving with his de facto partner Ms

Suzanne Smith, in, as I understand it, Ms Smith’s vehicle.   Mr M   and Ms

Smith have been in a de facto relationship for about five years.

M V POLICE HC WN CRI-2009-435-3 21 April 2009

[3]      Mr M   and Ms Smith were involved in an accident when the vehicle in which they were travelling left the road.

[4]      Those matters aside, there is a considerable difference of view as to what happened.

[5]      The charges laid against Mr M   reflect, in essence, Ms Smith’s account of events, namely that Mr M   was driving, that after the accident they got out and she phoned a male friend to pick them up.  Mr M   then accused her of sleeping with the male friend and punched her to the left side of her jaw.  She fled and hid in long grass.  Mr M   spent about 20 minutes looking for her and then left.  She followed him at a distance.  He then approached her again, seized her by the hair, pushed her to the ground and forced her head into the sealed road surface. He verbally assaulted her and held her down by her throat.  He kicked her on the back of her legs.  In a subsequent victim statement she records fearing for her life when he was choking her.

[6]      Mr M  ’s breath was subsequently analysed giving a result of 675 micrograms of alcohol per litre of breath.

[7]      In his written submissions, Mr Blathwayt refers to a dispute as to who in fact was driving the vehicle, and to the circumstances in which Ms Smith incurred her injuries.  In his submissions to me this morning, Mr Blathwayt has referred again to Mr M   having a different version of events, on the basis of which he would propose to conduct his defence to these charges.

[8]      Judge Harrop initially declined bail in the District Court at Masterton on 30

March, and again on 1 April.  Mr M   appeals those decisions.

District Court decision.

[9]      In considering bail on 30 March, the Judge started from the correct position that Mr M   was entitled to the presumption of innocence and that there were,

in  terms  of  relevant  provisions  of  the  Bail  Act  2000,  no  other  presumptions operating.

[10]     In that situation, and in terms of s 7(5) of the Bail Act, a defendant in the position of Mr M   “must be released by a Court on reasonable terms and conditions unless the Court is satisfied that there is just cause for continued detention”.

[11]     The Judge reviewed the alleged facts.   Having done so he noted that Mr M   was entitled to the presumption of innocence.   He considered, however, that the presumption of innocence must be tempered to some extent by the strength of the Police case.   Referring to evidence of Ms Smith having been found in a distressed state, with swelling to her face and neck and with clumps of her hair falling out, and photographs of injuries and medical examination reports, and to Ms Smith’s video statement, he commented that “it will difficult for you [Mr M  ] to explain how all of that evidence occurred if, as you say, nothing happened”.

[12]     In considering the provisions of s 8 he accepted there was no relevant risk of failure to appear or, other than in terms of possible offending against Ms Smith, any risk of interference with witnesses.  Again, and as regards further offending whilst on bail, he noted that the focus of the Police opposition to bail was the risk of further offending against Ms Smith.

[13]     I note, at this point, that Mr M   has two previous offences of male assaults female involving assaults on Ms Smith.   In June 2006 Mr M   was convicted when he assaulted Ms Smith after he and Ms Smith had been drinking together at a hotel.   In February 2005 Mr M   assaulted Ms Smith when she came  home  with  another  male.    In  an  earlier  incident,  Mr  M    was  also convicted of being unlawfully on the premises of a previous partner threatening violence against that person’s new partner.

[14]     I think it is therefore fair to say that Mr M   does have a history of violence against Ms Smith, and of unlawful behaviour more generally in a domestic setting.

[15]     In considering the risk of further offending against Ms Smith, the Judge referred to s 8(5) of the Bail Act. That section provides as follows:

In  deciding,  in  relation  to  a  defendant  charged  with  an  offence  against section 49(1)(a) or (b) of the Domestic Violence Act, whether or not to grant bail to the defendant or to allow the defendant to go at large, the Court’s paramount consideration is the need to protect the victim of the alleged offence.

[16]     Although the Judge noted that this was not a case to which s 8(5) “strictly” applied, nevertheless he treated the situation as if it was, because of the relationship between Mr M   and Ms Smith and because of the nature of the offending.  He therefore concluded that the primary consideration he had to apply in these circumstances was the need to protect the complainant and, in that consideration, that her interests were paramount.   See, in particular, paragraphs [13] and [16] of his decision.

[17]     The Judge then went on to consider, in effect, whether bail could be granted on conditions.   In that context he noted that Mr M   had the support of his employer, with whom he was gainfully employed, and that it could be a condition of bail that Mr M   live in Carterton (away from Masterton) and perhaps not travel north of the Waingawa River.  He nevertheless concluded that the interests of the complainant and her safety outweighed those considerations.   He therefore remanded Mr M   in custody, although he did so for as short a time as possible and the matter was considered again on 1 April.

[18]     In considering the matter on 1 April Judge Harrop declined, correctly in my view, an application by Mr M   to give evidence.  As he noted, Mr M   was, in any event, entitled to the presumption of innocence.  At the same time the Judge  had  before  him  a  report  from  the  victim’s  adviser  which,  to  his  mind, confirmed the concerns he had about the safety of Ms Smith.

[19]     He therefore again declined Mr M  ’s request for bail, noting that this was a case that perhaps could be considered in terms of electronically monitored bail.

Approach on appeal

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

[21]     As such, it is well settled that a Judge of this Court should only interfere on appeal if satisfied 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 

[22]     For Mr M  , Mr Blathwayt submitted that the Judge reached a plainly wrong decision in terms of the balancing exercise he undertook as regards the need to protect the complainant and the possibility of  granting Mr  M   bail  on conditions.  Mr Blathwayt said there was no proper basis for the Judge to find that there was a risk of further offending against the complainant, particularly as there was no risk of offending whilst on bail.

[23]     Given Mr M  ’s previous  criminal  history,  I do  not  think  that  is  a criticism that can be made of the Judge’s decision.

[24]     As regards the risk of offending whilst on bail, Mr Blathwayt pointed to the fact that the written record of bail history is a little unclear.  The record records an offence committed on bail (CRI-2005-035-003882) as also being the remanded offence.   Mr Blathwayt submitted on that basis, and I agree with this submission, that it is not therefore clear that Mr M   has been convicted for offending whilst on bail.   Mr Blathwayt emphasised this morning that his challenge to the Judge’s decision was that the Judge had given too much emphasis to the risk of offending because, here, any further offending would be offending in breach of bail conditions.

[25]     Mr Blathwayt also submitted that the Judge, in undertaking his balancing exercise, gave too much weight to the summary of facts, which derived principally from the complainant herself.  He said, as I have indicated above, that Mr M   had a different version of the facts, upon which he will base a defence.

[26]     Mr Blathwayt also pointed to the issue of time until trial.   At the hearing before me this morning I inquired of Mr Blathwayt whether he could provide me with further details.  He indicated that if a trial was held in the summary jurisdiction it may be able to take place in June.  He noted, however, that at the present time his prediction was that it would be more likely for Mr M   to elect trial by jury, in which case there would not be a trial until very much later this year.

For the Police

[27]   In Mr Webber’s written submissions and before me this morning, he acknowledged that the Judge had approached the matter on the basis as if s 8(5) applied.  Mr Webber nevertheless said that that was an understandable approach and one that was not in appropriate because of the previous history of domestic violence. Mr Webber submitted that what the Judge was in effect doing was acknowledging the relevant risk and approaching the question of bail by reference to that risk as being the only matter requiring consideration.

[28]     In that light Mr Webber submitted that the Judge had exercised his discretion appropriately on the basis of a correct understanding of the law, and his decision should therefore be upheld.

Discussion

[29]     In my judgment this appeal raises an initial legal issue.

[30]     That legal issue is whether the Judge was correct when he concluded – as recorded above – that the primary consideration he had to apply in these circumstances was the need to protect the complainant and, in that consideration, that her interests were paramount in this application.

[31]     In my respectful view, I do not think that proposition is correct as a matter of law – at least in the way it was expressed by the Judge.  Section 8(5) addresses the particular  circumstances  where  a  defendant  is  charged  with  an  offence  against s 49(1)(a) or (b) of the Domestic Violence Act 1995, namely where the offence is one of contravening a protection order.

[32]     In situations of such offending, a protection order has already been obtained against the defendant in favour of the complainant.  This requires, under s 14 of the Domestic Violence Act, a determination by a Family Court that:

a)        the defendant has used domestic violence against the complainant or a child of the complainant’s family or both; and

b)the  making  of  an  order  is  necessary  for  the  protection  of  the complainant or of a child of the complainant’s family or both.

[33]     Therefore,  there  has  already  been  a  determination  that  the  complainant requires  Court-ordered  protection  from  the  defendant.     Moreover,  offending involving a breach of a protection order inherently entails the defendant breaching the conditions that were considered necessary to protect the complainant.

[34]     It is in those circumstances that, as a matter of law, the Bail Act requires the Court to give paramount consideration to the need to protect the victim of the alleged subsequent offending.

[35]     That was not the case here.  Rather, when the offending is under the Crimes Act there is (generally) no pre-existing determination that the complainant requires protection from the defendant, such that this should be elevated to the paramount consideration on bail.  Of course, where there is nevertheless a history of (Crimes Act) offending against the complainant, it is open for the Judge to find that there is a need for protection for the complainant and give this factor due weight in the circumstances.

[36]      Therefore I do not think it is correct to consider applications such as Mr M  ’s on the basis “as if” s 8(5) applied, particularly in light of the requirement of s 7(5) that persons in the position of Mr M   “must be released by a Court on reasonable terms and conditions unless the Court is satisfied that there is just cause for continued detention”.  It therefore follows that in my view, and with respect to the learned District Court Judge, it is also not appropriate to approach the question of bail in these circumstances on the basis that the interests of the complainant are paramount.

[37]     Given the view I have taken of those legal matters, it is appropriate that I

reconsider the question of bail.

[38]     I acknowledge immediately that, in terms of this bail application, the clear and relevant risk is that of Mr M  , given the history of violence, either offending against Ms Smith in a violent way whilst on bail – a mandatory risk in terms of s 8(5)(a)(iii) – or endeavouring to persuade Ms Smith not to give evidence against him, or in some other way interfering with her so as to improve his chances in any trial on these offences.  This is also a mandatory risk, this time in terms of s 8(5)(a)(ii).

[39]     As regards bail, I am also to consider Ms Smith’s views, as the victim of this alleged offence.   In the memorandum provided by the victim adviser, Ms Smith recalls the adverse effect of the alleged assault on her, records the previous history of violence against her and her fear as to what could happen to her if Mr M   was to be released on bail.

[40]     Whilst, as Judge Harrop did, I note that in terms of assessing at this time statements of Ms Smith as to what happened on the day in question, Mr M   is entitled to the presumption of innocence, I consider that her fear for her safety is a relevant consideration for me, not only in light of the victim statement but especially in light of Mr M  ’s previous offending history.

[41]   Here, therefore, what I must consider is whether reasonable terms and conditions can be imposed on Mr M   which can satisfactorily address the risks I have identified.

[42]     In this regard I note that, at least in terms of his criminal record, Mr M   would not appear to have offended against Ms Smith for some time.  I also need to bear in mind, in this instance, that I take the view there is no record of Mr M   having previously offended whilst on bail.  At the same time, there is Ms Smith’s own narrative of a history of violence and her fear of further violence offending. The decision is, as the District Court Judge himself recognised, a finely balanced one.

[43]     In considering these issues I have also had regard to the possible length of time until trial, and to appropriate likely sentencing ranges were Mr M   to be found guilty.

[44]     In light of these considerations, and accepting that appropriate conditions would have Mr M   living and continuing to live with his employer’s mother in Carterton, and would also prevent him from in any way contacting or being in contact, directly or indirectly, with Ms Smith, and also appropriate travel and curfew restrictions, I have reached the conclusion that those are reasonable terms and conditions which address the relevant risks that have been identified.

[45]     On that basis, Mr M  ’s appeal is allowed and he will be admitted to bail on the following conditions:

a)        that he reside at 255 High Street, Carterton with the mother of his employer Mr Amos, subject to a curfew from 9pm to 7am;

b)        that he have no contact, direct or indirect, with Ms Smith;

c)        that he does not consume alcohol; and

d)       that he does not travel north of the Waingawa River except to attend

Court.

[46]     It goes without saying that were there to be any breach of these conditions in any way involving a risk or threatened risk to Ms Smith’s safety, or which was directed at interfering with her as a witness, then Mr M   could no longer expect to enjoy bail.  In effect, through the conditions imposed on bail, Ms Smith is being given interim protection by the Court similar to that which she would enjoy were she to have obtained a protection order.   If Mr M   does breach these conditions in any way that affect Ms Smith, she will be able to bring the matter to the attention of the Police and, through them, to the Court.

“Clifford J”

Solicitors:   WCM Legal, P O Box 49, Carterton for the appellant ([email protected]) Crown Solicitor, Wellington for the respondent ([email protected])