Murray v Police
[2013] NZHC 3432
•17 December 2013
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2013-488-000054 [2013] NZHC 3432
BETWEEN EDWARD CHARLES MURRAY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 17 December 2013 Appearances:
D J Blaikie for Appellant
C M Gisler for RespondentJudgment:
17 December 2013
(ORAL) JUDGMENT OF ANDREWS J [Appeal against refusal to grant EM bail]
Solicitors/Counsel:
D J Blaikie, Kaikohe
Crown Solicitor, Whangarei
MURRAY v NEW ZEALAND POLICE [2013] NZHC 3432 [17 December 2013]
Introduction
[1] Mr Murray appeals against refusal to grant electronic bail (“EM bail”) in a
decision of Judge G Davis given in the District Court at Kaikohe on 13 November
2013.1
[2] The appellant faces two charges: first, that on 1 October 2013, while a protection order was in force against him, he physically abused the protected person, and secondly, on the same day he injured the complainant with intent to injure her. He has pleaded not guilty to both charges.
Background
[3] It is alleged that the appellant and the complainant spent the day of 1 October
2013 around their home. Late in the afternoon the appellant started drinking. At about 7.30 to 8.00 pm the complainant walked into town and met up with the appellant’s sister. They bought some alcohol and returned to the complainant’s home. The appellant, the complainant, and other people continued to drink at the house, seated around the dining room table.
[4] Late in the evening, the appellant told the complainant to stop drinking. She stopped, but stayed at the table. It is alleged that without any warning, the appellant sprang from his seat (a wooden-framed dining room chair), grabbed hold of the chair and, using both hands, swung it and struck the complainant on her back and on her head. The force of the strike was such that the chair was damaged. It is alleged that the complainant suffered bruising to the back of her head, right arm, back, and right hand, together with a black eye. The complainant says she must have blacked out at this stage, and did not remember much of the evening until she woke up in bed with the appellant beside her.
[5] It is alleged that the complainant was in severe pain, and could not walk around the house. It is also alleged that the appellant told her she was not to leave the house, as he did not want anyone to see her injuries.
[6] On 4 October 2013 a Police Officer made a routine visit to the house. The appellant said that the complainant had gone to Auckland to visit family, but the Police allege that the complainant was in the house, but had been told by the appellant to stay in the bedroom and not make any noise. It is alleged that she complied, because she was scared of the appellant.
[7] The appellant denies any offending, and says that it is a total fabrication. Mr Blaikie, for the appellant, says that the complainant had been drinking heavily during the evening, then absented herself from the home late in the evening and did not return until the early hours of the morning. When she returned the complainant had significant injuries. The appellant maintains that the complainant made up the allegations because of her resentment at the appellant’s insistence that she leave the home and the relationship. Mr Blaikie has referred me to statements taken from persons present at the house, after the appellant was arrested, which are not consistent with what the complainant says.
District Court decision
[8] The Judge first noted that an EM bail report recorded the proposed address as being technically feasible and indicated that he was of a mind to grant EM bail. However, the Police then advised the Judge that the appellant was subject to ss 10 and 12 of the Bail Act 2000 (the former because of a previous conviction for violent offending, the latter for having previously received more than the specified number of prison sentences, and having been convicted of a specified offence committed while on bail), and was considered to be a high bail risk. The Judge then noted that the appellant carried the onus of satisfying the Court that he would not while on bail commit any offence involving violence. The Judge referred to the appellant’s record
of convictions for violent offending, which he referred to as “unenviable”.2
[9] The Judge then expressed the view that any domestic situation the appellant involved himself in was one of high risk.3 He noted that the appellant is entitled to the presumption of innocence, but concluded that that did not displace the risk
assessment he was required to undertake. He concluded that the appellant had not
2 At [4].
discharged the onus. The Judge then referred to a period the appellant had spent on EM bail following allegations of violence “against the same victim”, in respect of which the appellant had been acquitted in 2012.4 Bail was, in the end, refused.
Appeal submissions
[10] The appeal is on the grounds that the Judge took into consideration matters that should not have been considered, and that the decision was wrong in fact and in law.
[11] In his submissions for the appellant, Mr Blaikie said that the Judge was wrong to say that the appellant had been on EM bail in respect of charges of assault against the present complainant. He submitted that those charges alleged assaults on his brother in law, and the appellant was acquitted. Mr Blaikie submitted that the Judge erroneously counted as an important factor in refusing bail, and indeed placed undue emphasis on, the fact that the appellant had previously been acquitted of violence against the present complainant. He submitted, today, that to refer to this was to the extent of being a fundamental error in any event given that the appellant was acquitted on the charge.
[12] Mr Blaikie further submitted that the fact that the appellant had been able to complete a prolonged period of EM bail in 2012 without incident should have been a strong factor in support of allowing EM bail on the present application. He submitted that successfully completing the EM bail shows that the appellant can comply with bail conditions. He put to me that there cannot be any clearer evidence of the appellant’s ability to comply with conditions than his history of doing so.
[13] Mr Blaikie also submitted that EM bail can safely be allowed, as the complainant, when asked for her views as to whether the appellant should be granted bail, said “I don’t really care because I won’t be back”. Further, the appellant himself says that the relationship will not continue.
[14] Finally, Mr Blaikie submitted that conditions may be imposed to ensure that no further offences are committed: that the appellant not have any direct or indirect contact with the complainant, that no adult females be present at any time at the address while the appellant is subject to EM bail, and that the appellant not consume alcohol, and that he submit himself to breath testing if required by the Police.
[15] For the respondent, Ms Gisler submitted that the Judge did not err in refusing bail. Ms Gisler first submitted that the Judge did not err in focussing on the risk of violence towards the complainant. She submitted that while the complainant’s views may be considered, it is clear from ss 10(5) and 12(7) of the Bail Act that it is the complainant’s safety, not her perception of risk, that is the primary consideration. Further, that is a primary consideration pursuant to s 8(5) of the Act.
[16] It was also submitted that the appellant has seven previous convictions for contravening protection orders relating to the complainant, five convictions for assaulting her (out of a total of nine convictions for violent offending), and has served terms of imprisonment for those offences. It was submitted that the appellant has demonstrated that he poses a real risk to the complainant’s safety, and an EM bracelet will not alleviate the risk. Ms Gisler also submitted that 18 of the appellant’s convictions had resulted from offending while on bail.
[17] In respect of the appellant’s conviction history, Mr Blaikie submitted in response that while the appellant’s recent convictions for violent offending related solely to the complainant, his conviction for offending against any other person was
20 years ago. That said, Mr Blaikie acknowledged that the recent conviction history does indeed show violence against the complainant.
[18] While Ms Gisler accepted that the Judge in the District Court had erred in saying that the complainant in the 2012 case was the complainant, it was submitted that that does not affect the accuracy of the Judge’s assessment that the appellant had previously committed offences of violence, so posed a risk to the complainant’s safety.
[19] Ms Gisler further submitted that while it is the case that the appellant has previously complied with EM bail, a sentence of home detention imposed in October
2009, was cancelled in February 2010 on the grounds of breaches of conditions of the sentence. This was explained by Mr Blaikie, following seeking further instructions from the appellant, that the appellant had in fact sought, by way of a breach of bail, cancellation of the sentence after encountering particular difficulties involving the complainant and the relationship between the people resident at his home detention address.
[20] Finally, Ms Gisler submitted that EM bail, no matter what conditions are imposed, will be to no avail if the appellant were simply to leave the designated address.
Discussion
[21] A challenge on appeal to a bail decision is an appeal against the exercise of a discretion. The appellant must show that the Judge made an error of principle, failed to take into account all relevant matters, took into account irrelevant matters, or was plainly wrong.
[22] Because the appellant is subject to ss 10 and 12 of the Bail Act, he was required to satisfy the Court that he should be granted bail; that is, that he would not fail to appear in Court when required, he would not re-offend while on bail, and he would not interfere with witnesses. Ultimately the Judge was required to make a judgment on whether the risk of release on bail is at an acceptable level. In any case it is a matter for the discretion of the Judge to assess what is a risk in the circumstances of the case, and whether terms of bail will sufficiently reduce that risk.
[23] This appeal turns on the Judge’s decision that the appellant had not discharged the onus of proving that he should be released on bail, and that he would not commit an offence involving violence while on bail. It appears from the Police opposition to bail filed in the District Count that this risk was considered to be confined to the event that the complainant went back to the appellant. That would
indeed appear to be supported by the appellant’s conviction history in which the only
recent convictions are those concerning violence against the appellant.
[24] Do the complainant’s assertions that she “won’t be back” the Police comment that the complainant was “receiving advice as to her future” and in particular the proffered bail conditions banning alcohol and requiring the appellant to submit to alcohol testing, sufficiently alleviate what is a clearly demonstrated risk of violence against the complainant?
[25] There are two further matters which impact on the answer to this question. The first is that Ms Gisler, for the respondent, was not able to advise me as to whether the complainant is still in the area. It would appear from the Police opposition to bail that she was being advised that she should reside elsewhere, but it is not clear whether that has occurred.
[26] Secondly, the appellant has now encountered difficulties with his accommodation. The address which had been assessed as being technically feasible for EM bail, and would indeed appear to have been an address considered by the Police to be suitable for bail, may no longer be available as the appellant’s landlord has given him notice.
[27] I have reached the conclusion that the Judge, having focussed on the complainant’s safety, as he was required to do, has not considered the possibility of bail with the conditions offered and in the absence of the complainant from the area.
[28] In the circumstance, while I am not able, today, to give a decision allowing the appeal, I would be prepared to consider doing so were I to receive: first, confirmation that the complainant is no longer in the area, and secondly, confirmation as to an available bail address.
[29] If counsel are able to satisfy me on those two matters then I will, by memorandum, allow the appeal and bail may be granted on the conditions put forward by the appellant, together with the standard conditions for EM bail. In the event that that confirmation is not available, then the appeal will be dismissed.
Mr Blaikie is to file a further memorandum by mid-day on Friday 20 December
2013.
Andrews J
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