R v H HC Auckland CRI-2010-404-459

[2010] NZHC 2286

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-459

THE QUEEN

v

H

Hearing:         7 December 2010

Appearances: J L S Shaw for the Crown

B Castelino for the Accused

Judgment:      16 December 2010

JUDGMENT OF ELLIS J

This judgment was reissued by me on 16 December 2010 pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Crown Solicitors, PO Box 2213, Auckland 1140

Counsel:       B Castelino, 60 Castlefinn Drive, Weymouth, Manukau 2103

R V H HC AK CRI-2010-404-459  16 December 2010

[1]      Mr H   appeals a judgment of Judge Hikaka in the Manukau District Court declining him bail on 17 November 2010.  Mr H   has been charged with injuring with intent to injure and the effect of this is that ss 10 and 12 of the Bail Act apply, the onus being on Mr H   to show on the balance of probabilities why bail should be granted and, more specifically he will not, while on bail, commit any offence involving violence against, or danger to the safety of any other person.

[2]      The principal basis on which the application for bail was made and upon which this appeal was advanced was that Mr H  ’s partner has, by affidavit sworn on

10 November  2010,  now  recanted  her  earlier  statement  to  the  police.     Thus Mr Castelino relies on s 8(2)(b) of the Bail Act as militating in favour of the grant of bail.  Mr Castelino accepts, however, that in terms of the mandatory factors under s 8(1) Mr H   faces significant difficulty for the reasons given by Judge Hikaka in his judgment.

[3]      In this last respect I simply record that Mr H   has 168 previous convictions including 68 involving acts of violence.  As well, he has previously breached other bail conditions on numerous occasions and has committed 83 offences while on bail.

[4]      Mr Castelino also sought to stress, on his client’s behalf, that Mr H   had resolved to turn over a new leaf whilst in custody and, secondly, that there were particular concerns about the delay in bringing this matter to trial, the present trial date   being   22   February   2011   (Mr   H     having   been   in   custody   since

14 October 2010).

[5]      I bear in mind the nature of bail appeals, namely that they are against the exercise of a judicial discretion.   Thus  an  appellate court cannot disturb a bail decision on appeal unless satisfied that the Judge below applied a wrong principle, failed to take into account relevant matters, took into account irrelevant matters or that his decision is otherwise plainly wrong.  It would not, for example, be open to me simply to substitute my own view on the issue of bail as if considering the matter afresh.

[6]      As well, however, in the present case and as I have noted above, Mr H   is subject to the onus placed upon him by virtue of ss 10 and 12.  It appears that this was not drawn to the attention of Judge Hikaka as he does not refer to it in his judgment.

[7]      In my view therefore there is no basis upon which I could properly interfere with the decision reached by Judge Hikaka.  I agree with him that each of the s 8(1) factors militate against the grant of bail to Mr H  .  As regards the retraction by the alleged victim of her previous statement to police, Judge Hikaka addressed this at [1] of his decision and in my view quite properly took into account the risk (in light of Mr H  ’s history) that there had been some interference with her that prompted the retraction.

[8]      And finally, of course, Mr H  ’s bail record presents real difficulties in terms of the onus now upon him to satisfy the Court that he will not commit other relevant offences while on bail.  I further take into account the specific need to protect the safety of the alleged victim in this case.

[9]      For all these reasons the appeal is dismissed.

Rebecca Ellis J