O v Police HC Wellington CRI-2008-485-3

[2008] NZHC 32

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2008-485-3

O

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         31 January 2008

Appearances: J Miller for Appellant

I Murray and F Keenan for Crown

Judgment:      31 January 2008

ORAL JUDGMENT OF GENDALL J

[1]      The Appellant appeared in the District Court at Wellington on 22 January

2008 on informations charging him with two counts of assault, one of resisting a Police Constable in the execution of his duty, and one of escaping from lawful custody.  The Appellant did not enter pleas and I am advised by Mr Miller that he will be pleading not guilty to those charges apart from the charge of escaping from custody.

[2]      The background facts or allegations made against the Appellant are set out fully in the decision of the District Court Judge when declining bail.

O V NEW ZEALAND POLICE HC WN CRI-2008-485-3  31 January 2008

[3]      Essentially, and in summary, these are that in the early hours of the morning of Sunday, 20 January 2008, the Appellant (in the company of a number of other young men) was in the Courtenay Place, Tory Street region in Wellington.   An altercation developed in which a man had some money taken from him.  He pursued the group with whom the Appellant was associated and that (supposed) theft was resolved.  But about two hours later the group came upon the victim.  It is said the Appellant adopted a threatening and intimidating attitude.  The victim fearing for his safety got into a taxi but it is said it was then assaulted by members of the group with whom the Appellant  was  associated.    The  assault  was  serious  enough  to  cause injuries to the victim’s face.  The Appellant denies any involvement in that assault but  upon  the  Police  being  called  it  appears  that  the  Appellant  and  one  of  his associates was identified at the scene by the victim.

[4]      Following  upon  that,  the  Appellant  was  arrested  but  perhaps  with  the assistance of an associate escaped and ran away.  Members of the public intervened and eventually the Appellant was apprehended some distance away and taken into custody again.   It is said that when being led away he proceeded to head butt a member of the public who had, it is said, assisted the Police.

[5]      The Appellant was on bail at the time having appeared in the District Court at Wellington on Friday, 18 January 2008.  Conditions of bail included a curfew and obviously he was in breach of that curfew.

[6]      The District Court Judge correctly stated that the focus he had to have was contained in the mandatory provisions in section 8(1) of the Bail Act.   Namely, whether there was a real and significant risk of one or more of three things.   The Judge concluded that there was a real and significant risk that the Appellant might not appear in Court, and that there was a similar risk of offending whilst on bail. The Judge considered whether those risks could be met by the imposition of conditions but did not regard that as feasible.

[7]      In able submissions made by Mr Miller, he emphasised that the Appellant’s father from Palmerston North has offered his home as a place to which the Appellant could  be  bailed.    There  is  no  question  at  all  that  the  Appellant’s  father  is  a

responsible citizen.  Mr Miller submitted that the Police’s concerns could be met by the imposition of conditions involving a curfew and residence in Palmerston North, and Mr Miller emphasised that the Appellant is now well aware of the need to adhere to or comply with curfew.

[8]      Under the amended legislation a history of breaching bail does not of itself count against the defendant or appellant unless the history is relevant to one of the mandatory risk factors.  But the issue in this case it seems to me is not a breach of curfew but alleged offending whilst on bail.

[9]      The Appellant is aged 21 and has offended on previous occasions whilst on bail.    Between  February  and  June  2007,  that  is  a  period  of  four  months,  the Appellant committed seven offences.  He failed to answer Police bail on 14 February

2007.   He failed to answer District Court bail on 12 March 2007.   He failed to answer District Court bail on 25 May 2007 and he is (or was) currently on bail on the alleged crime of burglary.  He has pleaded not guilty to that and I am mindful that he is entitled to the presumption of innocence in respect of all those matters.

[10]     Judges (no more than anyone else) cannot predict the future and whether there is a real and significant risk of offending whilst on bail is often speculative. But  past  performance  or  past  behaviour  sometimes  is  a  reasonable  or  reliable indicator of what might likely occur in the future.

[11]     The Judge had before him a record which showed three failures to answer bail, together with offending whilst on bail.   This alleged offending in the early hours of the morning on 20 January 2008, and if proven, occurred whilst on bail for the crime of burglary.   The two mandatory features or factors which the District Court Judge clearly had in mind persuaded him to exercise his discretion and not to grant bail.

[12]     This is an appeal against the exercise of that discretion, and it has not been shown that the Judge was wrong.  It may be that circumstances have changed, such as the offering of the Palmerston North address, but it was not the issue of the address which concerned the District Court Judge.   It was the real and significant

risk that the Appellant would fail to answer his bail and would be likely to commit further offences whilst on bail.  It has not been shown that the Judge exercised his discretion wrongly and accordingly the  appeal must be dismissed.    If it  should eventuate that circumstances change, whether through pleas or otherwise, so that a District Court Judge can be persuaded that the mandatory provisions of section 8(1) do not exist, then the position can be reviewed.  But at this stage, it is clear to me that the District Court Judge was quite entitled to reach the decision that he did, and

therefore the appeal must be dismissed.

J W Gendall J

Solicitors:

J Miller Law, Wellington for applicant
I Murray and F Keenan for Crown