M v Police HC Whangarei CRI 2009-088-1210

[2009] NZHC 865

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2009-088-1210

M

Applicant

v

THE POLICE

Respondent

Hearing:         22 July 2009

Appearances: A Fairley for Applicant

B O'Connor for respondent

Judgment:      22 July 2009

JUDGMENT ON BAIL APPLICATION OF ALLAN J

Solicitors:

Thomson Wilson, Whangarei

Crown Solicitor Whangarei

M V  POLICE HC WHA CRI 2009-088-1210  22 July 2009

[1]      In October 2008, Mr M   was involved in an incident, during which he obtained possession of a motor car from the complainant in this matter, who at the time was at home in Whangarei.  On a later occasion, Mr M   obtained possession of a second car, in allegedly similar circumstances.

[2]      Subsequently he was apprehended by the police who have charged him with aggravated robbery, threatening to do grievous bodily harm and threatening to kill. He has been in custody since his apprehension in March 2009.

[3]      Mr M   now applies for bail pending his trial.  There is a history of bail applications in the District Court;   first on 16 March 2009 Mr M   applied to Judge Duncan Harvey who was not then inclined to allow bail on the footing that the applicant relocate to Auckland and comply with a 24 hour curfew.   The Judge considered that the plaintiff’s list of previous convictions was a significant factor, and that there was a need to protect the victims.  The Judge also noted that s 10 of the Bail Act 2005 applied, and it was for the applicant to satisfy the Court on the balance of probabilities, he would not while on bail, commit any offence involving violence against or danger to the safety of any other person.

[4]      On  22  April  2009,  a  further  application  for  bail  was  made  to  Judge Tompkins.   At that time, the Judge considered the prospect of electronic bail, but took the view that the seriousness of the alleged offending, the similarity between that offending and the offences committed in 2005, the fact that the present alleged offending occurred whilst on bail, and the general risk to the community, was such as to preclude the grant of bail, whether electronically monitored or not.

[5]      There was then an appeal to this Court.  In a brief minute Priestley J noted that depositions were scheduled for the middle of July.  They have now taken place and the applicant is committed for trial.  The Judge considered the appropriate course was for a fresh application to be brought in the District Court, but of course now that Mr M   has been committed to this Court, the jurisdiction to grant bail lies here. The Judge was  also concerned  at that time that the bail address then proffered appeared to be unsatisfactory.  It is a different address from that now suggested.

[6]      Mr Fairley advances the case for bail on several grounds.  First, in respect of the position of the alleged victims, he says both that his client is not aware of their whereabouts, and that while Mr M   has been in custody, nothing untoward has occurred by way of indirect contact between his client and the complainants.

[7]      Second,  he  refers  to  the  fact  that  the  officer  in  charge  of  the  case  had indicated  to  him  that  the  police  do  not  oppose  bail  on  the  ground  of  likely interference with witnesses, and in particular the victims.  Accordingly, Mr Fairley submits the Court can be satisfied that the concerns expressed in the District Court about the risk of that occurring can be set aside.

[8]      This is a case, he says, in which there will be very significant delay until trial. Mr M   has already been on remand in custody since March and it appears no firm fixture date will be available until the early part of 2010.   That is always an important factor.

[9]      Mr Fairley points out that Mr M   has considerable family support, and that the bail address in Auckland which has been suggested is that of his parents, who are in a position of some authority over him, and one of whom will be in the house with him at all times.   Mr Fairley says the proposed conditions will satisfactorily cope with any risk the grant of bail might entail.

[10]     For the Crown, Ms O’Connor does not rest her opposition on the victim safety point.   Rather, she says that Mr M  ’s previous record disentitles him to bail because the Court cannot be confident he will not offend while on bail, in the same manner as he has on previous occasions.  She points to convictions relating to offences in 2005 which bear some similarity to the offences charged here.  She also points out that s 10 applies, and it is for Mr M   to satisfy the Court that bail is appropriate.

[11]     At this point, it is convenient to turn to s 8(2) factors, two of which require particular mention.   The first is delay.   Where as here, the effect of the Court schedule will result in a very long period of remand in custody where bail is refused, that is an important factor to be taken into account.

[12]     The second factor is the strength of the case against Mr M  .  Although on the face of it the Crown has a strong case, Mr Fairley says there will be a serious defence, the basis for which is the contention that the complainants owed Mr M   money,  and  ultimately the  car  was  handed  over  voluntarily in  satisfaction  of  a legitimately owed debt.  I make no comment on that, except to say that on the face of it it appears to be a tenable defence.

[13]     Ultimately, the question for the Court is whether the proposed conditions will be sufficient to minimise or exclude the risk of offending while on bail, to which Ms O’Connor refers.

[14]     I have carefully considered the affidavits filed in support of the application, not so much from Mr M   but from his family.  I am satisfied he has a degree of family support, and I infer there exists a measure of family authority, sufficient to diminish the risk of offending while on bail to the point at which it is appropriate to grant bail.

[15]     But Mr Fairley has pointed out, this is a case in which the slightest deviation from proper behaviour will result in you, Mr M  , being remanded in custody, and precluding you ever getting bail again if there are future offences.  This is in the light of the s 10 onus you bear, and where the Court in granting bail has considered every point to which Mr Fairley has referred.

[16]     Accordingly, I am satisfied it is appropriate to grant bail.   The following conditions are imposed:

a)        You are to reside at 10B Ingleby Place, Kelston, Auckland. b)           There will be a 24 hour curfew at that address;

c)        You are to accompany at least one of your parents on the trip back to the bail address in Auckland, and are to travel directly to that address;

d)You are to present yourself at the door forthwith if called upon by any police officer;

e)        You are not to contact the complainants either directly or through any other person.

f)        You are not to associate with any member of the Head Hunters.

g)        You are remanded to appear in this Court for callover on Thursday 10

September 2009 at 9 am.   For that purpose you are to come to Whangarei via the most direct route from the bail address.  You are to be accompanied by at least one of your parents.

C J Allan J