N v Police HC Blenheim Cri-2010-406-2

[2010] NZHC 820

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2010-406-02

N

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 April 2010

Counsel:         M J Lillico for Appellant

J Murdoch for Respondent

Judgment:      27 April 2010 at 2.30pm

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 2.30pm on the 27th day of April 2010.

RESERVED JUDGMENT OF MACKENZIE J

[1]      This is an appeal against the refusal of bail.

[2]      The appellant faces three charges of sexual violation by unlawful sexual connection and six charges of indecent assault.  The alleged offending falls into two groups.  The first group, involving two complainants, relates to events in 2006.  The appellant had developed a consensual sexual relationship with a woman living next

door to the appellant’s father.   On one occasion, it is alleged that the appellant

N V NEW ZEALAND POLICE HC BLE CRI-2010-406-02  27 April 2010

penetrated the complainant’s vagina with a cucumber, and persisted when she protested.  On one occasion in early 2006 the first complainant’s elderly mother was visiting when the appellant was present.   It is alleged that the appellant, under a pretext, had the second complainant take her top off and lie on a bed, and then fondled her breasts.

[3]      The second category of alleged offending involves five residents of a rest home, aged between 57 and 96 years of age.  The appellant was employed in the rest home as a carer.  The complainants were in the rest home by reason of age or, in the case of the youngest complainant, because of tetraplegic disability.  The allegations are that on various occasions, over varying time periods between January 2006 and March 2010, the appellant digitally penetrated or indecently touched the elderly and vulnerable complainants in the genital or breast area.

[4]      Judge Mill,  in  dealing  with  the  application  for  bail,  noted  the  issue  for decision as being whether there is just cause for continued detention, that is, is there a risk that he will fail to appear or further interfere with evidence of witnesses.  He noted the presumption of innocence.  The Judge’s consideration of bail arose on the appellant’s first appearance.  He noted that further investigations were ongoing.  He expressed the view that there is a risk of flight at this stage which may or may not be clearer at a later time.  He noted that two addresses were proposed, the applicant’s then present address, which the Judge described as far too close to the rest home, or his brother’s address in Blenheim.  He said that he could have no confidence at this point that the risk of flight is such that he should release the appellant on bail.  He also noted that investigation was ongoing and the possibility of further offending being disclosed and said that until that is clarified the risk is real and bail is refused.

[5]      The grounds of appeal are that there is no just cause for continued detention of the appellant and that the Judge erred in considering the appellant to be a flight risk due to the nature of the alleged offending.

[6]      On an appeal in relation to bail, the appellant must demonstrate that the Judge has proceeded on a basis which is wrong in principle, has considered irrelevant

matters or failed to consider relevant ones, or has reached a decision which is plainly wrong.

[7]      I consider that the question of bail will require reconsideration once the matters which were of concern to the Judge are clarified.  So far as the flight risk is concerned, the appellant does not have a significant history of previous offending and there is no history of offending while on bail.   A relevant consideration, in assessing the flight risk, is whether conditions which might be imposed, such as to surrender passport or travel documents, might be adequate to meet that risk.  That possibility has  not  yet  been  addressed.    The possibility of  further  complainants coming forward will be better able to be assessed once inquiries have proceeded further.  An important consideration in relation to bail will be whether the possibility of contact, including chance meetings, between the complainants and the appellant can be minimised or avoided.  That is a risk which is at least potentially capable of being addressed by conditions of bail limiting the access of the appellant to areas where the rest home residents might be expected to go.  That requires more detailed consideration.

[8]      It is clear from the Judge’s decision that he regarded the decision as an interim one, which could be reviewed when the circumstances become clearer.  On that approach, I do not consider that grounds for interference with that decision on appeal have been made out.   The appropriate remedy, where there is a change in circumstances, is a further application for bail.   A change in circumstances may include more detailed information on circumstances which were not fully known at the time when the initial application was made.  Successive applications for bail are not to be encouraged.   However, this is a case where a full consideration of the relevant issues will be better undertaken in the context of a renewed application for bail than on this appeal.  At this stage, this Court is in no better position than was Judge Mill to undertake a full assessment.

[9]      For these reasons, the appeal is dismissed.

“A D MacKenzie J”

Solicitors:           Sladden, Cochrane and Co for Appellant

Crown Solicitor, Wellington for Respondent