Naylor v Police HC Whangarei CRI 2007-488-48

[2007] NZHC 2035

ORDER PROHIBITING PUBLICATION OF ANY PART OF THE PROCEEDING (EXCEPT THE OUTCOME) UNTIL FINAL DISPOSITION OF TRIAL

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2007-488-48

BETWEEN  DANIEL JOHN NAYLOR Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         23 August 2007

Counsel:         C Cull for Appellant

K R Thomas for Respondent

Judgment:      23 August 2007

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Whangarei
Counsel:

C Cull, Kerikeri

NAYLOR V NEW ZEALAND POLICE HC WHA CRI 2007-488-48 23 August 2007

Introduction

[1]      Mr Naylor appeals against refusal of bail in the District Court.   Bail was refused on 28 June 2007 by Judge Treston, in the District Court at Kaitaia.

[2]      The charges on which bail was refused are one of sexual violation by way of rape and another of sexual violation by digital penetration.  Each carry a maximum penalty of 20 years imprisonment.

[3]      At the time Judge Treston gave his decision, Mr Naylor was a sentenced prisoner.  He had been sentenced to a term of imprisonment on 20 December 2006. Judge Duncan Harvey sentenced him on that day on four charges; one of kidnapping, one of male assaults female, one of contravening a protection order and one of wilful damage.

[4]      It is a matter of some concern, and was to the District Court Judge, that the events that give rise to the present charge occurred on 15 December 2006, when Mr Naylor was on bail pending sentence on the earlier charges.

[5]      An order was made this morning to transfer the trial to the District Court in

Kaikohe.  The next callover is 9am on 19 September 2007.

Submissions for appellant

[6]      In support of the appeal, Ms Cull, reminds me that the application for bail was one to which s 8 of the Bail Act 2000 related.   Accordingly, it was for the Crown to prove that there was just cause for further detention.

[7]      Although Mr Naylor was a sentenced prisoner at the time of the last bail hearing, bail was in fact sought from the date of his intended release on 4 July 2007.

[8]      Ms Cull submits that the District Court Judge erred in holding that there was a risk of flight.  Further, she submits there was no sufficient evidential foundation to

satisfy the District Court Judge that there was a risk of reoffending or interference with witnesses, that could not be managed by the imposition of reasonable terms of bail.

[9]      At all times, there has been a proposal that Mr Naylor reside at an address in Kaitaia and be subject to a 24 hour curfew along with other appropriate terms to prevent contact with the complainant or any Crown witness.

Submissions for respondent

[10]   Mr Thomas, for the Crown, submits that the risks of reoffending and interference with witnesses cannot be managed appropriately.  He submits that it is necessary for there to be a remand in custody pending trial.  He supports the judge’s decision for the reasons he gave.

Analysis

[11]     I remind myself that this is an appeal against a decision of a Judge who had before  him  substantially  similar  evidence  to  that  which  I  have.    Accordingly, applying ordinary principles relating to the exercise of a discretion, an appeal cannot succeed unless the Judge erred in law, took account of irrelevant considerations, failed to take account of relevant considerations or was plainly wrong.

[12]     I agree with Ms Cull that the evidence was insufficient to justify a finding that there was a risk of flight.  There has been no conduct by Mr Naylor which would suggest that he is unlikely to attend Court for any hearing.

[13]     The issues of risk of interference with witnesses and risk of reoffending are more problematic.

[14]     The complainant, though not living in Kaitaia itself, resides in the vicinity of that town.   In addition, there is a friend of Mr Naylor who will be called to give evidence by the Crown, who works at the place where Mr Naylor worked prior to his

sentence and who works at the same location as one of the people at whose address

Mr Naylor is intended to be bailed.

[15]     The risk of reoffending arises out of the earlier offending on which he was sentenced.  Mr Naylor is 22 years old and those are the only offences of which he has been convicted.   There are disturbing similarities between the offending for which he was sentenced on 20 December 2006 and the present allegations.   Both involve an underlying theme of the exercise of power in the course of relations between male and female.

[16]     It is too early for me to assess, with any certainty, the strength of the Crown case.  Clearly, the fact that complaints were made promptly and the complainant was seen in a state of distress shortly after the alleged incident, point to a lack of consent; whereas, Mr Naylor’s position will be either that there was actual consent or that he had an honest belief on reasonable grounds that consent to sexual relations had been given.

[17]     A 24 hour curfew may well be sufficient to manage risks of bail, provided there were adequate evidence to establish the degree of supervision that would be exercised over Mr Naylor’s movements, his ability to use a telephone and his ability to use a device to send text messages.  All of those modes of communication would need to be managed before bail could be considered.

[18]     There was no evidence before Judge Treston as to the way in which those modes of communication could be managed.  Nor was there any evidence as to the level of supervision available.   Likewise there is no evidence before me on those issues.

[19]     It seems to me that there will need to be evidence of that type, perhaps with the exploration of the use of electronic monitoring to ensure there is an appropriate mechanism to ensure that Mr Naylor does not breach any 24 hour curfew.

[20]     My view is that there is no basis on which an appeal against the District Court Judge’s decision can succeed at present.  The Judge did not take into account irrelevant factors or fail to take account of relevant factors and did not err in law.

[21]     It is likely, from what I have been told today, that there will be pre-trial issues.  Those pre-trial issues (involving, as they do, the provisions of the Evidence Act 2006 which has just come into force) may delay significantly the time at which a trial could be held in the District Court at Kaikohe.  In my view, it should be open to Mr Naylor to make a fresh application for bail at the next callover.  That application is better assessed at first instance by the District Court rather than me on incomplete evidence, attempting to second guess the Judge from whom I am hearing this appeal.

[22]     Any application for bail would need to be supported by evidence as to the way in which Mr Naylor’s movement would be supervised and ways in which the use of devices to communicate can be managed.   The prospect of electronic bail could be explored in the meantime.

Result

[23]     For the reasons I have given, the appeal is dismissed.  But, I make it clear it would be appropriate for a fresh application, on the basis I have indicated, to be

brought before the District Court at the next callover.

P R Heath J