Police v M HC Christchurch CRI 2008-409-190
[2008] NZHC 1752
•13 November 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2008-409-000190
NEW ZEALAND POLICE
Appellant
v
M
Respondent
Hearing: 13 November 2008
Counsel: D J Orchard for Appellant
S Bailey for Respondent
Judgment: 13 November 2008
ORAL JUDGMENT OF PANCKHURST J
[1] This is an informant’s appeal against a grant of bail in the District Court. Accordingly it falls to be determined with reference particularly to s41(2) and (6) and s42 of the Bail Act 2000. The appeal is by way of rehearing, but subject to the normal test that the Judge’s discretionary decision must be shown to be wrong in light of the ordinary issues which are relevant in that context.
[2] The respondent awaits trial upon a charge of wounding with intent to cause grievous bodily harm and a further charge of threatening to kill, alleged to have been
committed on 24 March 2007. The complainant in relation to those charges is also
NEW ZEALAND POLICE V M (AKA HOOKER) HC CHCH CRI
2008-409-000190 13 November 2008
the complainant in relation to some much more recent charges to which I will refer in a moment.
[3] In March 2007 he was a flatmate of the respondent. I need not go into the background circumstances. It is sufficient to say that at night, when the complainant and his girlfriend were in bed, they were interrupted by the respondent. It is alleged that she armed herself with a knife and inflicted two stab wounds to the complainant’s back.
[4] This case has already been to trial once, earlier this year. After the complainant Mr Gray and his girlfriend had given evidence, a mistrial was declared on account of the jury being reduced below the requisite number. An order for a retrial was made and this was to commence on Thursday, 16 October.
[5] The complainant appeared in court in order to give evidence. There was discussion between him and the respondent and also her partner, a man named Murray Orchard. According to the complainant he was threatened, reference being made in that context to gang affiliations. He also asserts that he was offered an amount of cannabis in order to secure his non-appearance as a witness. These exchanges involving both the respondent and Mr Orchard were captured, in part at least, on closed-circuit television. What is beyond dispute is that the complainant left the precincts of the court, the Crown was unable to proceed and the trial was eventually adjourned.
[6] The further new charges to which I referred a moment ago relate to Sunday,
19 October. There was text communication with the complainant. As a result of it he went to an address in Whiteley Avenue, Christchurch and eventually into a warehouse. There he was struck a blow by Mr Orchard it is alleged, with a pick handle or its equivalent. The complainant was accompanied by a close friend who was a witness to these actions. Their evidence is that they went to the address expecting to receive cannabis and perhaps money as well. Instead what the complainant received was a serious facial injury, including a fracture to his eye socket and damage to his retina. He was admitted to hospital and operated upon.
[7] Arising from these events and the events on 16 October, the respondent faces three new charges. These allege conspiring with Orchard to pervert the course of justice and attempting to dissuade the complainant from giving evidence. Both of these charges are referable to 16 October. The third is a charge of causing grievous bodily harm with intent to cause grievous bodily harm on 19 October. Mr Orchard is charged as the principal party and the respondent as an instigator. These matters, I note, were laid on 21 October. However, neither the respondent nor Mr Orchard could be immediately located. Warrants for their arrest eventuated. In the event, however, Ms M made contact with her counsel (by this point Ms Bailey who, I should note, was not counsel at the earlier mistrial, nor on 16 October, the date of the intended retrial). Arrangements were made and Ms M appeared at a pre- trial callover list hearing on 24 October.
[8] It was then that Judge Phillip Moran considered, and ultimately granted, bail. Before I turn to that decision I note that Mr Orchard was not apprehended until
6 November when police went to the respondent’s home address and located him, despite Ms M ’s endeavours to prevent this occurring. His presence at the address gave rise to a breach of bail terms in that there should not have been contact between the two.
[9] It is common ground that s12(1)(a) of the Bail Act applied. Accordingly there was an onus upon the appellant to demonstrate on the balance of probabilities that if granted bail she would not commit, relevantly, offences of violence. The Judge was also bound in terms of s12(7) to regard the protection of the victim, in this case the complainant, Mr Gray, as a primary consideration. His decision is effectively encapsulated in these words:
You are charged here with being complicit in violent offending but, as I say, they are only charges at the moment. You have a criminal history which is long but crimes of violence do not feature in it. While this witness was attacked it is not suggested that you had any direct role in that. I think the suggestion is that you set it up and you are capable of doing that whether you are in custody or not I imagine.
So I am not persuaded that you are unlikely to commit crimes of violence if I admit you to bail. I am also mindful of the fact that you are not being tried until next March and that is a very long time to be locked up in the face of charges laid for the first time today.
So you are admitted to bail.
[10] In my view the reasoning upon which the decision to grant bail was made cannot stand. The Judge noted correctly that the recent charge of causing grievous bodily harm was only an allegation. He also observed that the respondent did not have a record for violence. Rightly, he noted that the respondent was not alleged to have been the principal offender but rather the instigator or person who had “set it up”. The observation was then made that instigation of violence was as possible from a prison setting as from within the community. The Judge then said “So I am persuaded that you are unlikely to commit offences of violence”.
[11] I do not follow this. It seems to me that the implication of the observation concerning the ability of a person to instigate offences of violence from a prison setting suggests that the Judge saw a real risk of violence, albeit one he felt he could not contain. But in any event I do not think that the essential question posed by s12(5) was answered, namely whether there was a real risk of violence in the event that bail was extended.
[12] For these reasons I consider that the present appeal must be approached de novo and the argument has proceeded on that footing. Aside from what I have said about the reasoning in the bail decision, this course would probably have been required for other reasons as well. Section 12(7) was not expressly averted to in the decision. I resile from the thought that the Judge was not well aware of it, and did not have it in mind, but nonetheless this is a case where the views of the victim must be accorded primary consideration. The more so given the factual background to which I have already referred. More importantly, I am in no doubt that I am in possession of much more information than was available to the Judge. I also have the luxury of time which he did not have when considering the matter in a list court.
[13] For all these reasons I am satisfied that it is essential to approach matters de novo. To my mind the essential focus must be upon the events of 16-19 October
2008. While the respondent has a lengthy list of previous convictions they are almost exclusively for offences of dishonesty, and the bulk of them occurred as a single lot in 1995. Nonetheless she has one previous conviction in June of 2005 for threatening behaviour. Mrs Orchard has made the summary of facts relevant to that charge available. The threat was one with a 12 centimetre knife which was
brandished against a neighbour. On reading the summary it seemed to me to have some echoes when one bears in mind the allegations which form the basis of the charges which have been to trial but still remain undetermined. So while her previous list is not greatly significant, nor does it provide assurance.
[14] To my mind some weight must also be given to the allegations referable to 24
March 2007. They remain unproven. However the fact is that that case has been to trial once and both the complainant and his girlfriend gave evidence before the mis- trial was declared. The case was also on the brink of returning to trial last month and would have done so but for the fact that contact (to which I have already referred), was made with the complainant and he left the precincts of the court. This may be seen as some indication of the respondent and perhaps Mr Orchard’s assessment of the peril which a trial carries from the respondent’s viewpoint.
[15] I regard the events in October, however, as rather more pertinent than the respondent’s previous list. There is evidence including on television of contact between the respondent and the complainant before he absented himself from the court. That is the starting-point. His evidence is that he was both threatened and bribed. That evidence does not stand alone, because there is evidence of text communication with him in the days which followed. As Mrs Orchard argued in her submissions, it is the respondent who has a motive to see the complainant unavailable as a Crown witness in relation to the 2007 allegations. That motive, it seems, was persuasive as at 16 October, but might be seen as even stronger now in light of the events alleged to have occurred on 19 October and which are the subject of a further, even more serious, charge. Although there is clear evidence that Mr Orchard was the principal party in the 19 October assault, there is also clear evidence to establish a close association between him and the respondent. Indeed the indications seem to be that they were in a relationship and perhaps even living together.
[16] I have seen text messages which preceded the complainant going to the address where he was struck with the handle. Judge Moran did not. The crucial text message is one in these terms sent by Mr Orchard to the complainant at 5.57 pm on
19 October. It purported to have come from the respondent. It reads:
He back, the yard he at is 81 whightley ave just past addington motorcamp, its full of cars, u hav to honk horn at gate
As I have said it purported to be from the respondent but was sent from the cellphone of Mr Orchard. The complainant responded to it, indeed sent a text message to Mr Orchard’s cellphone saying that he was at the yard and had honked but that there had been no response. The complainant of course thought that that text message was not going to Orchard but rather to the respondent.
[17] This, in summary, is the evidence which implicates the respondent in relation to the attack on 19 October. She has not made a statement to the police and indeed may not have been asked to, given that she was arrested upon her appearance in court on 24 October. Whatever the reasons the fact is that I do not know her explanation save for the indication through Ms Bailey that she, in instructions to counsel, denies all knowledge of the attack.
[18] The victim’s views have been ascertained. Understandably he is petrified as to his welfare. More than that I accept Mrs Orchard’s submission that he is legitimately in a position where he is looking for assurance, if not protection, in relation to his appearance as a witness, now potentially in relation to two trials not one. His girlfriend at the time of the 2007 knifing is also a witness to that and in my view relevantly covered by the requirement in s12(7).
[19] In opposing the appeal Ms Bailey accepted that there may be perceived to be a risk of violence, but not one that could not be covered by appropriate bail conditions. She stressed the circumstance that the respondent has been on bail at all stages since the 2007 charges were laid. I agree with her that it is an odd circumstance that the complainant came to no harm in the context of the first trial and was only threatened, it seems, on 16 October and when he was on the very brink of giving evidence at the second trial. Ms Bailey submitted that this indicated the respondent could be trusted on bail and vindicated the present decision.
[20] A further submission made was that a distinction must be drawn between the position of Mr Orchard on the one hand, and the respondent on the other. He is plainly in the frame with reference to the attack on 19 October, as not only the
complainant but his friend are capable of identifying him as the assailant. I agree the same cannot be said in relation to the respondent. For all that I have referred to the evidence which in my view does tend to implicate her in relation to that offence and I think she is also in peril and therefore that she has, as Mrs Orchard put it, an increased motive in relation to this complainant.
[21] I regard the events of 16 and 19 October as such, albeit that they are allegations and remain to be proved, as of such moment that the respondent could not satisfy the onus upon her in terms of s12(5). I do not overlook a matter which influenced the Judge, namely that there will be a significant delay until the first trial let alone until the second. But the major factor must be the assessment of risk and, in light of it, the primary consideration becomes the protection of a complainant who has already suffered a grievous injury.
[22] For these reasons I do not consider that it was a case where bail should have been granted. I allow the appeal, revoke the grant of bail and order that the
respondent be remanded in custody.
Solicitors:
Raymond Donnelly & Co, Christchurch for Appellant
Serina Bailey Barrister, Christchurch for Respondent
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