Matenga v Police HC Rotorua CRI-2007-470-19

[2007] NZHC 1737

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2007-470-19

SHANE HUIA MATENGA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         18 May 2007

Appearances: Mr D Bates for Appellant

Ms L-M Davis for Respondent

Judgment:      18 May 2007

(ORAL) JUDGMENT OF LANG J [on appeal against refusal to grant bail]

Solicitors:

Mr D Bates, Tauranga

Crown Solicitor, Rotorua

MATENGA V NZ POLICE HC ROT CRI-2007-470-19  18 May 2007

[1]      Mr Matenga faces a charge of sexual violation by rape.

[2]      The circumstances that give rise to the charge arise from an incident that occurred on 5 January 2007.   It is alleged that Mr Matenga visited an address next to the address occupied by the complainant.   The complainant is said to have seen him at the neighbouring address and went over to spoke to Mr Matenga.     She then invited Mr Matenga into her house for a cup of tea.   He then went into the woman’s home, closed the door and immediately began to fondle her and tell her that he loved her.     He is said to  have then pushed her  into the bedroom, undressed  her and undressed himself.    Alleged acts of intercourse and sodomy then took place.    The Crown case will be that the complainant protested throughout this and asked Mr Matenga to stop.

[3]      When the acts had finished he asked if he could come back to visit  the complainant but was told that he could not.   He then left the address.

[4]     When interviewed by the police Mr Matenga acknowledged that sexual intercourse had occurred but was uncertain about whether or not sodomy had occurred.    During a videotaped interview with the police Mr Matenga said that he was “70 per cent certain” that the complainant had consented but he expressed some disquiet that he may have “pushed the boundaries”.

[5]      Mr Matenga applied for bail in the District Court.     In a careful decision delivered on 19 April 2007 His Honour Judge Rollo dismissed the application.   Mr Matenga now appeals to this Court against the refusal of the District Court to grant him bail.

Grounds of appeal

[6]      The grounds of appeal are clearly written by Mr Matenga himself.    I have some difficulty in discerning the precise basis upon which Mr Matenga advances the appeal.   It is clear, however, that he strongly denies the allegations and that he has a real concern that he has already been judged guilty in relation to them.

[7]      During argument today, Mr Bates confirmed this impression and said that his client feels very strongly that his client is innocent and that on that basis alone he should not remain in custody pending his trial.

The approach to be taken

[8]      A decision to decline bail is, of course, the exercise of a judicial discretion. As such it will only be amenable to review by this Court in the event that it can be shown that the discretion was exercised according to an incorrect principle or that it was plainly wrong.

Decision

[9]      The grounds of appeal being virtually unintelligible, I propose to determine the appeal according to  conventional principles.      I propose to  examination the approach taken by the learned District Court Judge and to decide whether it accords with the proper application of the appropriate principles.

[10]     Judge Rollo considered first the mandatory considerations under s 8(1) of the Bail Act 2000.    These are the likelihood that the accused will answer his bail, the risk of offending whilst on bail and the likelihood that witnesses will be interfered with.

[11]     Dealing with the first of these, the Judge took the view that there was a real risk that Mr Matenga may fail to attend Court if released on bail.   He noted that Mr Matenga has a number of previous convictions that relate to non-compliance with Court orders.   There are two breaches of bail, one conviction for breaching periodic detention, five convictions for driving whilst disqualified and one charge of obstructing police.

[12]     Viewing these matters overall I am satisfied that the Judge was entitled to conclude that Mr Matenga’s past conduct suggests that there is a possibility that he may breach his bail and not attend at trial.

[13]     Next  the Judge dealt  with the  issue of potential interference with Crown witnesses.   This is relevant in the present case because the Crown contends that the complainant has been approached on at least one occasion and encouraged to withdraw her complaint against Mr Matenga.   This occurred in circumstances where Mr Matenga’s sister, who has apparently befriended the complainant’s neighbour, approached the complainant and advised her to tell the police that she had identified the wrong man.

[14]     During the hearing Mr Bates advised me from the bar that he has now spoken to Mr Matenga’s sister and that she denies that she has ever spoken to the complainant.

[15]     If this incident occurred, it happened whilst Mr Matenga was in custody. Notwithstanding this fact I accept that there must remain a genuine concern that, should Mr Matenga be bailed, he may endeavour to apply further pressure on the complainant or arrange for others to do so.

[16]     In dealing with the risk that Mr Matenga may offend whilst on bail, the Judge pointed out that Mr Matenga’s criminal history contains a number of convictions in respect of offending that occurred whilst on bail as well as on parole.    Again, the fact that these convictions exist raises the real risk that further offending might occur if Mr Matenga is granted bail at this point.

[17]     In dealing with the discretionary considerations, the Judge took into account first the seriousness of the offence.   It goes without saying that Mr Matenga faces a very serious charge and it cannot be doubted that if he is convicted he will receive a lengthy prison sentence.

[18]     Next, the Judge referred to the strength of the current case.     The Judge accepted  that  the  recent  complaint  evidence  was  strongly  supportive  of  the allegations of the complainant.     Witnesses will evidently tell the  Court  of the extremely distressed state in which they found the complainant very shortly after the incident that has given rise to the charge.   The Crown will rely on this evidence as

supportive of the complainant’s version of events and the fact that she was distressed as supporting the allegation that the acts of intercourse were non-consensual.

[19]     There is also the factor that this incident occurred after Mr Matenga had only known the complainant for the briefest of periods, and in circumstances where the complainant has some intellectual impediment.

[20]     Finally, there are the admissions made in the police interview.   These include the acceptance by Mr Matenga that intercourse occurred and his concession that he was only “70 per cent certain” that the complainant consented.

[21]     All of these issues suggest to me that the Crown case can be described as being reasonably strong and that there is a realistic prospect that Mr Matenga may be convicted at trial.

[22]     The Judge was alive to the issue of the possibility that Mr Matenga may be required to remain in custody for a reasonably lengthy period before trial.    That is always a matter of concern, but the Judge considered that close monitoring through the pre-trial process could safeguard Mr Matenga’s situation in this regard.

[23]     During the hearing this morning I was advised that a firm fixture has now been allocated for 15 October 2007.    This reflects the fact that priority has been given to Mr Matenga’s trial as a result of both his custodial situation and also the difficulties faced by the complainant.   I do not consider that a further delay of some five months is out of the ordinary in circumstances such as the present.

[24]     All of these factors persuade me that the Judge addressed the mandatory and discretionary principles under s 8 of the Bail Act 2000 in an appropriate manner.   I do not detect any error of principle in the way in which the Judge determined Mr Matenga’s appeal for bail.   For this reason the present appeal must be dismissed.

Lang J