R v Police HC Nelson Cri-2010-442-13

[2010] NZHC 981

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2010-442-000013

R

v

NEW ZEALAND POLICE

Hearing:         22 June 2010

Appearances: Mr Bamford for the appellant

Mr Stevenson for the respondent

Judgment:      22 June 2010

JUDGMENT OF MALLON J

[1]      Mr R   appeals against a bail condition that he is not to drive a motor vehicle.  He also appealed against a bail condition that he not consume alcohol or illicit drugs but the police have since consented to this condition being removed.

[2]      Mr R  ’s bail is on two charges of threatening to kill, one charge of assault with a weapon and one charge of intentional damage.  The charges relate to an  incident  on  14  April  2010.    It  is  alleged  that  when  the  complainant  had approached Mr R   about money he owed the complainant, Mr R   became agitated and made threats to kill the complainant.   It is alleged that later, while Mr R   was driving a car, he saw the complainant driving his car, proceeded to

accelerate towards the complainant’s car and then hit the complainant’s car with his

R V NEW ZEALAND POLICE HC NEL CRI-2010-442-000013  22 June 2010

car.  When the complainant exited his car it is alleged that Mr R   made a further threat to kill the complainant.

[3]      Mr R   was granted bail subject to conditions as to where he was to reside, that he was not to contact directly or indirectly the complainant and a named associate, that he was not to enter Baton Valley Road, Tepawera, that he was not to consume alcohol or illegal drugs and that he was not to drive a motor vehicle.  As to that last condition the Judge’s reasons were as follows:

Also, in my view, given the alleged summary here, it is entirely appropriate that you not drive a motor vehicle, so it is a condition of bail that you not drive  a  motor  vehicle.    And  if  you  want  to  argue  the  toss  about  that condition, you can see Mr Bamford [counsel] and we can consider it again.

[4]      As  advised  to  Mr R    in  court  this  morning  I  allow  his  appeal. Disqualification may be ordered if Mr R   is convicted on the charges of assault with  a  weapon  and  intentional  damage  (if  the  car  is  viewed  as  facilitating this offending).  However, at this stage of proceedings, the issue is whether the condition is appropriate in light of whatever bail risks there may be.

[5]      The nature of the offending is violence and threats of violence towards the complainant, apparently arising out of debt owed by Mr R  .  The bail risk is that Mr R   may reoffend with further violence or threats of violence in relation to the complainant.  In the alleged incident the car was used by Mr R   as a means to carry out violence but there is no particular reason why, if Mr R   was to reoffend while on bail, that he would do so using his car.  Further, the condition that Mr R   not contact the complainant already addresses the risk of reoffending and in a more direct way than the driving condition.

[6]      In  these  circumstances  I  consider  that  the  Judge  erred  in  imposing  the condition of bail that Mr R   was not to drive a motor vehicle.  (I note that the Judge appears to have had in mind that the condition might be removed in any event if Mr R  ’s counsel wished to make submissions about this.)

[7]      Accordingly Mr R  ’s bail conditions are to be amended by deleting the condition that he is not to drive a motor vehicle. By consent, the condition that he is

not to consume alcohol or illicit drugs has also been deleted.  All other conditions of bail remain the same.

Mallon J

Solicitors:

T Bamford, Bamford Law, Nelson, email: [email protected]

C Stevenson, Pitt & Moore, Nelson, email: [email protected]