R v K HC Auckland CRI 2008-092-18963
[2009] NZHC 1875
•26 June 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2008-092-18963
THE QUEEN
v
K
Hearing: 26 June 2009
Appearances: A M McClintock for Crown
B Hart for K
Judgment: 26 June 2009
JUDGMENT OF ALLAN J
Solicitors:
Crown Solicitor Auckland
B Hart [email protected]
R V K HC AK CRI 2008-092-18963 26 June 2009
[1] Mr K is currently for trial in this Court on 5 October 2009, on a number of charges involving two complainants. The present indictment contains five counts. In respect of complainant A there are counts of abduction, rape and assault on a female. In respect of complainant S there are counts of abduction and indecent assault.
[2] The Crown has applied to amend the indictment by adding further counts, including one of rape in respect of complainant S. The application for amendment will be opposed by Mr K .
[3] Mr K first appeared on the current charges in the District Court in October 2008. He has been remanded in custody ever since. He now applies to this Court for EM bail pending his trial.
[4] It is relevant to note that as well as the pending application to amend the indictment, there is an application for severance as between the two complainants, which is to be heard on 20 August 2009.
[5] The alleged offending can be briefly described. Late on the evening of
26 September 2008 the applicant is said by the Crown to have approached a prostitute on the street in the Manurewa area. The complainant willingly accompanied the applicant to a remote area in order that he might avail himself of her services. A dispute arose and the complainant refused to have sex with him. A physical scuffle developed. Ultimately the accused is alleged to have raped the complainant, and to have stolen the contents of her wallet, including a substantial amount of cash.
[6] About a fortnight later, on 8 October 2008, the accused is said to have approached the second complainant S while she was walking home in Papatoetoe. That complainant willingly got into the applicant’s car. They drove around Auckland for some time. They drank a quantity of alcohol and smoked some cannabis. On the Crown case, the applicant demanded sex. Again the complainant refused. A scuffle developed during the course of which the applicant is said to have
indecently assaulted the complainant. The Crown alleges that this complainant was also raped by the applicant, that offence underpinning one of the counts which the Crown now seeks to include in the indictment.
[7] That complainant located a nearby security guard, the police were alerted and the applicant was apprehended. On the police case, he had been harassing other prostitutes following the alleged offending against S.
[8] It is common ground that the provisions of ss10 and 12 of the Bail Act 2001 apply. Accordingly, there is an onus upon Mr K to satisfy the Court that bail ought to be granted.
[9] Mr Hart submits that the restrictions inherent in the EM bail regime and other conditions which is the Court is able to impose, are sufficient to cope with any risks that might be identified by the Court. Sections 10 and 12 expressly require the Court before granting bail to be satisfied on the balance of probabilities that the applicant will not, while on bail, commit any offence involving violence against any other person. The Court is also obliged to take into account the need to protect the safety of the public, and of any victim or victims of the alleged offences. Those are primary considerations.
[10] Against that background, the Court is nevertheless required to have regard to the provisions of s8 of the Bail Act.
[11] Ms McClintock raises a number of concerns. I deal with them in the order they appear in s8(1). The Crown says there is a risk of flight, but it is not placed by Ms McClintock at the forefront of her submissions. She relies chiefly on the applicant’s history of failing to comply with the conditions of police bail, and on two occasions failing to answer District Court bail.
[12] As Mr Hart submits, the circumstances in which breaches of that sort are committed vary enormously. The last was committed in 2003. There has been no history of such failures more recently, although I note that Mr K has been in custody for significant periods over the last five years. I do not regard the failure to
appear in Court as presenting a real risk; electronic monitoring would further diminish it.
[13] Ms McClintock expresses some concern about the risk that Mr K might interfere with witnesses. Again, her concerns are somewhat muted. She says on an occasion when Mr K was previously convicted for abduction, there was evidence he had endeavoured to persuade the complainant not to continue. In the present case there is evidence from one of the complainants that she was threatened by Mr K as he left the scene. The Crown has a degree of concern that if released on bail Mr K may endeavour to contact the complainants. However, Mr Hart points out it would have been possible for him to do that by telephone from prison. There is no suggestion that it has occurred, or that Mr K is aware of the whereabouts of either of the complainants in the present case.
[14] I do not regard the risk of interference as presenting a significant obstacle to the grant of bail.
[15] Of greater concern perhaps is the risk he might offend while on bail. His past record is by no means perfect. There are 13 convictions for offences committed while he was on bail in the past. Moreover, the present charges mirror to a fairly marked degree, the offending for which the applicant was convicted in 2004, and for which he was sentenced to three years imprisonment, in that all three incidents involved the alleged abduction of a female, who in the first instance was willingly in the applicant’s company.
[16] The Crown has filed a psychologist’s report, which suggests that the applicant presents a profile carrying with it significant risk of re-offending. Mr Hart has gone to the trouble of procuring his own psychologist’s report. In each case the writers are persons of considerable experience and expertise. Each suggests there are some disturbing features, but it is difficult to accord them the weight they would carry if the Court were considering applications of a different type. It is sufficient to say that for present purposes the risk of offending while on bail simply cannot be dismissed. The question is whether it is a risk that can be appreciably mitigated by
the restrictions inherent in EM bail, and the conditions which it is open to the Court to impose.
[17] Certain s 8(2) factors are of some relevance. The present alleged offending is admittedly serious, and will attract significant prison terms if the applicant is convicted. The evidence is of some strength. There are two unrelated complainants whose accounts are remarkably similar, and indeed they are remarkably similar to the facts of a previous offence for which the applicant served a term of imprisonment.
[18] Mr Hart indicates identity will be an issue, although he is unable to provide any detail of the way that defence will be advanced. Neither is he required to do so for present purposes. Nevertheless, this is a case in which there is a distinct possibility, to put it no higher, that the applicant may well be convicted. If he is convicted he will face a substantial term of imprisonment.
[19] His record does not stand him in good stead. He has a lengthy list of convictions, comprising chiefly traffic related convictions, and convictions for failing to comply with Court directions and the directions of the police, apart from the conviction for abduction.
[20] The two remaining factors, which Mr Hart deals with in tandem, are the length of time before the trial, and the difficulties inherent in obtaining instructions from the applicant if he remains in custody. This is not a case where delay prior to trial looms large in comparison with some cases where refusal of bail will lead to remand in custody for more than a year. But a period of some months cannot be discounted.
[21] Mr Hart has explained in some detail the on-going difficulties faced by defence counsel in gaining access to their clients while on remand in prison, and that is a factor to be taken into account.
[22] The question for the Court is really whether the identified risks can be largely overcome by the restrictions inherent in EM bail. Until recently, there was an
insuperable obstacle to the grant of EM bail in this case because an earlier identified property was technically unsuitable. More recently the assessor was concerned about the legitimacy of the consents given by the occupiers of the proposed EM residence. There was an expressed concern that one or two of the occupants may have been acting in effect under duress.
[23] For today’s hearing, Mr Hart has proffered two affidavits from those who will be occupants of the house along with the applicant if EM bail is granted. The Court now has a rather more detailed picture of what is proposed. The applicant would have his own bedroom. The position seems to be that he will, for at least most of the time during his occupation of the house, which is his brother’s home, be accompanied by either his mother or his brother. His mother is to move into the house from her present residence. The EM assessor was concerned about the security of a young woman, the applicant’s brother’s daughter in law, who might be alone in the house with the applicant at times. That risk appears to be minimal on the evidence now available to the Court. The young woman concerned has filed an affidavit in which she explains she is out of the house for much of the working day, and entertains no fears for her safety. In summary, the property itself and the occupants of the house present no problems.
[24] It is possible to craft conditions which meet the Crown’s concerns. The question is whether Mr K will simply neglect to observe those conditions. The real issue is whether there is a discernible risk that he might leave the property in contravention of the EM conditions, and make his way into, or about the city, and to commit further offences and/or possibly interfere with witnesses.
[25] Mr Hart says the risk is negligible, because he will be under the scrutiny of the family, and subject to the moral pressure they are able to exert. Further, he says, Mr K will have little income and therefore little ability to pay his way. He will not have access to a motor vehicle. Mr Hart submits that the applicant has never been placed on EM bail and ought to be given the opportunity to demonstrate he is able to comply with appropriate conditions.
[26] I would not have contemplated granting bail, other than under the EM regime, but I am prepared to grant the application on the basis Mr K will be subject to EM restrictions. He must appreciate that any failure on his part to meet any condition will result in his recall to custody and detrimentally affect any further application for bail he might make in the future.
[27] The application is accordingly granted on the ordinary EM bail conditions, a copy of which is attached to this judgment but subject to two special conditions.
[28] For the avoidance of doubt Ms McClintock asks the Court to vary the condition in respect of passports. Mr K is to surrender to the Registrar of this Court by 5 pm on Tuesday 30 June 2009, any passports currently held by him. He is prohibited from applying for any alternative passport.
[29] It will be a condition of the EM bail that the applicant be accompanied in the house at all times by either his mother or his brother.
C J Allan J
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