R v Police HC Christchurch CRI 2008-409-000131

[2008] NZHC 2473

This case has been anonymized

NOT TO BE PUBLISHED UNTIL FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008-409-000131

R

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 August 2008

Counsel:         A S Greig for Appellant

S-L Litt for Respondent

Judgment:      1 August 2008

ORAL JUDGMENT OF PANCKHURST J

[1]      The appellant, R  , appeals against refusal of bail in the District Court.   The background is a little complicated.   He presently awaits trial upon a number of drug offences.  These are to be the subject of a preliminary hearing on

1 September.  The charges effectively allege conspiring to, and dealing in, cannabis and ecstasy.  A number of people are charged in the context of an operation code- named “Dove”.  With reference to these the appellant was admitted to bail subject to a residence and non-association clause (that is non-association with his alleged co-

offenders).

R V NEW ZEALAND POLICE HC CHCH CRI 2008-409-000131  1 August 2008

[2]      In June he was charged with three further offences being common assault, possession of a prescription medicine and breach of a liquor ban.  With reference to these, he entered a plea of guilty recently and has been remanded for sentence. Because at the time of the plea he was in custody with reference to the matter that is the subject of appeal, I imagine that bail was not raised or considered.

[3]      The further charge which is before the District Court is one of assault with intent to injure.   The allegation is that the appellant, with two co-offenders on 18

July, assaulted persons unknown.  Mr Greig indicates that the complainants (if they can be called that) are young men who might be termed white supremists and that they have declined to complain to the police.   Accordingly the case is dependent upon closed circuit television footage which apparently captured the relevant events, or at least some part of them, sufficient in the police’s view to warrant the charge.

[4]      On this matter the appellant appeared before Judge Erber on 18 July.  He was represented by a duty solicitor.   Bail was refused, essentially on the basis that the Judge had come to the conclusion that “this man is so unreliable that further bail is likely  to  be  breached.    He  is  remanded  in  custody”.    The  decision  raises  a fundamental problem.  Mr R   is aged 18 and turns 19 in December.  Accordingly s15 of the Bail Act applied.  Yet in the decision there is nothing to indicate that the “presumption” in favour of bail on account of age was confronted.

[5]      Fortuitously Mr Peters was in court when the bail decision was given since he was representing one of the co-offenders.  Through him it has been indicated that the police did not oppose bail, presumably because of the age of the offenders and the hurdle which that presents.  Nonetheless the Judge, of his own motion, determined that refusal of bail was appropriate, no doubt to reflect the history of failures which have occurred since Mr R   was first admitted to bail with reference to the drug matters.  In effect the Judge came to the view that enough was enough.  Although I sympathise with that view, the fact is that s15 required the matter to be looked at rather more critically.   Because there is nothing to confirm that it was,  I must approach the issue of bail de novo.

[6]      Mr  Greig  points  out  two  salient  features.    One  is  that  the  appellant  is employed as a deckhand working out of Lyttelton.  This means that he is at sea from Sunday to Thursday most weeks.  Secondly, he has now been in custody for a period of about two weeks.   This has apparently had an impact on him.   That is hardly surprising given that his previous convictions are few in number and have been dealt with by way of fines.

[7]      I am in no doubt that bail must be re-extended to the appellant.  I trust that the reasons which prompt that view are clear enough from what I have said already. Bail is granted subject to the following terms:

(a)     he is to reside at 24A Newbury Street, Christchurch,

(b)     when not at sea he is subject to a curfew between 10.00 pm and

7.00 am,

(c)     when not at sea he is not to come within the four avenues of

Christchurch city,

(d)he  remains  subject  to  the  non-association  clause  already  in existence in relation to co-offenders,  and

(e)     he is to report to the Sydenham Police Station on either Fridays or Saturdays after his return from sea.

Solicitors:

Tony Greig Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent