Nabi v Police HC Christchurch CRI 2010-409-137

[2010] NZHC 1338

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000137

AHAD NABI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         29 July 2010

Counsel:         P D Watts and S J De Beer for Appellant

K B Bell for Respondent

Judgment:      29 July 2010

ORAL JUDGMENT OF PANCKHURST J

[1]      This is an appeal against a bail decision.  Judge Radford, on 16 July, heard and  declined  an  application  to  vary  conditions  upon  which  Mr  Nabi  had  been released on bail.  The appellant is charged that on 3 July he breached a protection order, being a male assaulted a female and that he also threatened to cause grievous bodily harm to the same woman, namely by stabbing her.

[2]      The background is that Mr Nabi is in a relationship with the protected person. They have a son aged about 18 months.  On the day to which the offences relate they were together celebrating a birthday.  The relevant events occurred late at night at a

time when the appellant, the complainant and others had been drinking.  On the basis

AHAD NABI  V NEW ZEALAND POLICE HC CHCH CRI-2010-409-000137  29 July 2010

of statements made to the police at the time there was an assault and there was also a threat to cause grievous bodily harm.   However, now the indications are that the complainant herself, and also the principal intended police witness, have had second thoughts and are not prepared to give evidence in terms of statements they made.

[3]      When the matter came before Judge Radford he recorded the concern that what appeared to be quite serious charges were now the subject of a recantation on the part of the complainant.  He expressly said that he did not wish to be taken as indicating that the appellant had “caused the complainant to change her views”.  He added the observation “Nonetheless it is an uncomfortable situation”.  At that point he simply commented that he was not prepared to change the bail terms.

[4]      The variation sought was the deletion of a non-association clause in relation to Mr Nabi, the complainant and her son, and likewise deletion of a prohibition upon his going to the address occupied by the complainant and her son.   As counsel, Mr Watts, acknowledged the implication of the Judge’s decision is that he thought there was a risk of further offending.

[5]      At that time there was a letter from a victim advisor which recorded the domestic background; recorded that the complainant was not prepared to give evidence,   nor   supportive   of   the   prosecution,   and   finally  recorded   that   the complainant “does not consider there are any risks to her safety” and therefore that he should “be able to return to her home” and “be able to have contact with her and their son”.  The Judge did not expressly refer to this letter in the course of his brief decision.  Nor did he refer to Mr Nabi’s previous convictions which include three assaults in the period from 2001 to 2003 and, in 2004, an offence of wounding with intent to cause grievous bodily harm for which a sentence of two years six months’ imprisonment was imposed.   Although not referred to, I have little doubt that the Judge  was  aware  of  these  and  that  they  influenced  his  decision  to  decline  the variation sought.

[6]      It  is apparent  from  what has transpired  before me this morning that  the complainant is present in the precincts of the court, as is her son.   This rather indicates the difficulties which arise where bail conditions are imposed by the court

on the one hand, but the person intended to be protected by them simply waives any request for their imposition on the other.

[7]      Ms  Bell  has  rightly drawn  my attention  to  s8(5)  of  the  Bail  Act  which provides that in dealing with an issue such as this where a person is charged with an offence under the Domestic Violence Act 1995 “the need to protect the victim of the alleged  offence  is  the  paramount  consideration”.     Indeed,  I  also  accept  the submission that the need to provide protection in terms of that subsection may exist and prevail regardless of the views of the victim herself.  In short, some victims are incapable of knowing what is best for them.

[8]      All of that said, however, it seems to me that the point has been reached where the variation must be granted.   The complainant expressed her wishes emphatically before the variation application was heard and has repeated those views again in a letter dated 28 July prepared for the purposes of this appeal.  What I have observed today also suggests that there is an element of futility in the existence of the terms, given the complainant’s attitude towards the appellant.

[9]      In these circumstances, and reflecting the complainant’s determined view about matters, I grant the variation, delete the non-association clause as it relates to her and her son, and also delete the prohibition upon the appellant going to the

complainant’s address.  In all other respects the conditions of bail will continue.

Solicitors:

Philip Watts Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent