P v Police HC Wellington CRI-2008-485-95

[2008] NZHC 1251

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2008-485-95

CRI-2008-485-96

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 August 2008

Appearances: J Gwilliam and M Paish for the appellant

C Boshier for the respondent

Judgment:      7 August 2008

ORAL JUDGMENT OF CLIFFORD J

[1]      This is an appeal against a decision of the District Court at Upper Hutt on 9

July 2008 declining bail to Mr P  , the appellant.

[2]      Mr P   is facing two sets of charges relating to separate incidents on 11 May and 28 June this year.

[3]      As a result of events on 11 May, Mr P   faces charges of wounding with intent to cause grievous bodily harm and burglary, offences which carry maximum

sentences of 14 and 10 years respectively.  The allegation is that Mr P  entered a

P V POLICE HC WN CRI-2008-485-95  7 August 2008

flat against the wish of his alleged victim, and assaulted his victim by kicking and punching him and biting part of his ear off.

[4]      As  a  result  of  events  on  28  June,  Mr  P    faces  charges  of  burglary, threatening to kill, assault with a weapon – namely a knife, and male assaults female. Those offences attract maximum sentences of 10, 7, 5 and 2 years respectively.  Mr P  ’s alleged victim is his former partner, Rosemary Flood, with whom he has two children – who live with her –  and from whom he is, as  I understand it, now separated or at least their previous relationship has changed significantly.   I understand that Ms Flood, Mr P  's victim, is now expecting a third child by him.

[5]      The Crown alleges that, at about 5.30 in the morning, Mr P   entered his victim’s bedroom through a window with a broken latch.  That would appear to be the origin of the burglary charge.  I understand from Mr Gwilliam this morning that it is not disputed by the Crown that that charge may have been withdrawn, and the victim may have accepted that she invited Mr P   to her premises that night.

[6]      In any event, the charges of violence remain and the victim is, as I understand it, continuing with those charges as complainant and as a witness.

[7]      On the basis of Mr P  ’s previous criminal history, the District Court Judge approached this matter on the basis that s 12(1)(b) of the Bail Act applies to Mr P  . This morning the Crown accepted that that was not the case.   However, both the Crown  and  Mr  Gwilliam  for  the  appellant  acknowledged  that  s 10  applied  by reference to Mr P  ’s previous offences for rape, that is sexual violation, and for robbery and  on  the  basis  of  the  charge  he  now  faces  with  respect  to  the  May offending, namely wounding with intent to cause grievous bodily harm.

[8]      On that basis it is necessary for the Judge who considers bail to be satisfied under s 10(5) that Mr P   will not, on the balance of probabilities, whilst on bail commit any offence involving violence against or danger to the safety of any other person.  In deciding whether to grant bail the Judge has to bear in mind, as a primary consideration the need to protect the safety of the victim or victims of the alleged offending.

[9]      The District Court Judge, with reference to s 12 which differs from s 10 in its reference to the risk of burglary offending, concluded that on the balance of probabilities, he was not satisfied that Mr P   would not commit an offence involving violence or burglary.   To reach that conclusion he noted Mr P  ’s extensive criminal history.  He also referred to concerns that Police have as to the safety of Mr P  ’s victim, although I note that on the basis of material provided recently to the District Court Judge, a copy of which was given to me today, the victim herself would not seem to have concerns on that point.

Approach on appeal

[10]     This is an appeal against a decision of the District Court where, exercising his discretion, the Judge declined to grant Mr P   bail.

[11]     Because the District Court Judge exercised his discretion with respect to s 12, rather than as now accepted to be the case, s 10, I think it is appropriate that I approach the matter on the basis that I need to reconsider Mr P  ’s application.  In doing so, however, I note Ms Boshier’s submission, which I accept, that to the extent of the relevance of concerns as to violence, the earlier decision of the District Court is of relevance to my considerations.

Submissions on appeal

[12]     In his written notice of appeal Mr P   identified three principal matters:

a)       That he had, in response to an earlier indication in a previous hearing of bail matters in the District Court, found a suitable bail address outside Upper Hutt, and Mr Gwilliam repeated that submission to me this morning.

b)That he intended to defend the charges, and pointed to his recent clean record.

c)        Further  he  pointed  to  his  relationship  with  his  partner  and  their children and their support of him.

[13]     Mr  P    filed  affidavits  both  from  himself  and  from  his  sister  which confirmed those matters and, more particularly in the case of his sister, confirmed her willingness to provide an address for Mr P  .

[14]     In his submission Mr Gwilliam urged me to reach the conclusion that I could be satisfied on the balance of probabilities as required under subs (5) particularly by reference to the recent years, that is from 2005 onwards, during which Mr P   would appear to have, at least as regards violent offending, a clean record.  He also noted  that  the  victim  herself  did  not  have  concerns  for  her  safety.    He  also emphasised to me the matters that Mr P   intended to raise in his defence in terms of the earlier May charges, namely a defence of self-defence.  He submitted that the risk of further violence was minimal, and that I could be satisfied as I was required to be.

Crown submissions

[15]     In her submissions, Ms Boshier put to me that the District Court Judge had considered  relevant  matters  and  had  reached  a  decision  that  was  open  to  him. Further, she submitted to me that, in terms of my reconsideration of the matter, I had to pay particular regard to the risks of violence and to the concerns expressed as to the risk of domestic violence as reflected directly in s 10(6) of the Bail Act as regards the victim, and also in concerns more generally as regards alleged breaches of protection orders.

[16]     Ms Boshier said I could adopt the District Court’s s 12 reasoning in terms of the decision I need to make this morning under s 10.

Discussion

[17]     In terms of the matters put before me, they are essentially the same matters put before the District Court when it first considered Mr P  ’s application.

[18]     Whilst I acknowledge that Mr P   would appear, in recent years, to have improved his lifestyle, the concern I have, as I expressed to Mr Gwilliam, is that improvement would appear to have been very much associated with the relationship he had with the person who is now his victim, the complainant in the charges relating to the second set of offences.

[19]     Given that s 10 applies, the onus is on Mr P   to satisfy me that he ought to be granted bail and to persuade me that on the balance of probabilities that he would not whilst on bail commit any offence involving violence.

[20]     With regard to Mr P  ’s extensive history of violence, to the circumstances of the alleged offending for which he now faces charges, and in particular to what I take to be, reasonably clearly, the significance of that offending in terms of the stability previously given to him by his relationship, I have been unable to reach the conclusion on the balance of probabilities that he would not offend again whilst on bail in a violent way.

[21]     I acknowledge that Ms Flood herself would appear to have no concerns for her personal safety.  At the same time, in material provided by the Victims Adviser to a status hearing of the District Court, a copy of which Mr Gwilliam provided to me, Ms Flood is recorded as having commented: “The incident occurred because Mr P   had been drinking.  That’s what happens.  He gets violent”.

[22]     In these circumstances, as I said, I have been unable to satisfy myself as required in order to grant Mr P  ’s application.   The application is therefore dismissed.

“Clifford J”

Solicitors:           John Gwilliam & Co, Upper Hutt for the appellant.

Crown Solicitor, Wellington for the respondent.