Pellew v Police HC Rotorua CRI-2007-463-70

[2007] NZHC 1822

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2007-463-70

BETWEEN  CHRISTOPHER EDWARD PELLEW Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         11 June 2007

Appearances: Harry Edward for Appellant

Lisa-Marie Davis for Respondent

Judgment:      11 June 2007

JUDGMENT OF HARRISON J

SOLICITORS

HS Edward (Rotorua) for Appellant

Gordon Pilditch (Rotorua) for Respondent

PELLEW V POLICE HC ROT CRI-2007-463-70  11 June 2007

[1]      Mr Christopher Pellew was remanded in custody when he appeared in the

District Court at Rotorua on 16 May 2007.  He faced four charges all laid indictably

–  threatening  to  kill,  assaulting  a  female,  kidnapping  and  intimidation.    Judge

Christopher McGuire dismissed Mr Pellew’s application for bail.

[2]      Mr  Pellew  appeals the District  Court’s  decision.    His  counsel,  Mr Harry Edward, relies principally upon the availability of a suitable address in Tokoroa.  He has produced an affidavit sworn by Mrs Daphne Pellew, who is Christopher Pellew’s mother.   She confirms that she and her husband reside at and own a property at

15 Margaret Street, Tokoroa and that they are willing for their son to live with them there on whatever conditions are imposed pending trial.

[3]      Mr Edward also refers to the prospects of delay in obtaining a trial in this Court.  I can deal with this ground shortly.  Mr Pellew was charged on 9 May 2007. A preliminary hearing has already been fixed in the District Court at Tokoroa on

21 June.   Mr Edward confirms that the officer-in-charge has started the process of discovery.     The  speed  with  which  the  police  have  moved  is  commendable. Mr Edward will be in a better position to evaluate Mr Pellew’s defence following depositions and to make an application for bail accordingly.   While I accept that there is a significant backlog of cases awaiting trial in the District Court at Rotorua (Mr Edward advises that there are 70 in total), I have no doubt that arrangements could be made to accelerate this case for trial given that it is likely to be of relatively short duration.

[4]      To  revert  to  the  principal  ground  of  appeal,  Judge  McGuire  carefully evaluated the nature of the police case against Mr Pellew.  He is aged 40 years.  The complainant is aged 22 years.  They lived together for some time in Putaruru.  They had a son who is now aged one.  The complainant has a six year old daughter from a previous relationship.

[5]      Mr Pellew and the complainant separated.   However, they appear to have remained on reasonably good terms until he visited her during the evening on 8 May. She alleges that he was influenced by alcohol.   An argument  later ensued.   The complainant alleges that he then engaged in a prolonged period of physically and

emotionally violent  conduct towards her.   Among  other things she says that  he placed her in a headlock; he punched her with a closed and open fist on the head and forearms; he took a knife from the kitchen and taunted her before throwing it at her feet and instructing her to stab him with it; he kicked the exterior door five times causing glass panels to smash; and he yelled obscenities at her to the point where he became  extremely  upset  and  hyperventilated,  commenting  that  ‘you  have  got

10 minutes before I kill you’.

[6]      Eventually the complainant says Mr Pellew fell asleep.   She then escaped from the house with her children.   She arrived at the Police Station early the next morning.  She presented in a distressed state.

[7]      The Judge’s concern for Mr Pellew’s conduct was such that he requested a psychiatric evaluation  from a nurse who  was present  at  the  Court.    Apparently Mr Pellew did not manifest any adverse mental characteristics.   He has previous convictions but of a minor nature and none since 1992.

[8]      Against this background the Judge took into account all mandatory and discretionary  statutory  factors.    He  recognised  Mr Pellew’s  entitlement  to  the presumption of innocence.  He accepted that in terms of the mandatory factors there was no risk of flight and that Mr Pellew had no history of offending while on bail. However, the Judge was satisfied that the complainant’s safety would be at risk if Mr Pellew was granted bail; that is, there was a risk of interference with a witness. He did not consider that a residence at Tokoroa would be sufficient to alleviate it.

[9]      I am not satisfied that the Judge erred in his decision.  He took into account all relevant factors.  He placed appropriate weight on a mandatory consideration.  In my judgment, given the nature of the complainant’s allegation, Mr Pellew presents a risk of offending while on bail, even though he has no previous history in this regard, and of interfering with the complainant if he is not remanded in custody.  The Judge was right to conclude that Mr Pellew’s residence in Tokoroa, which is no more than

20 km from Putaruru, would not overcome these risks.

[10]     Accordingly, I dismiss the appeal but record that Mr Pellew is entitled to bring a fresh application for bail if the preliminary hearing discloses a relevant

change in circumstances.

Rhys Harrison J