R v Police HC Rotorua CRI 2009-463-99

[2009] NZHC 2347

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2009-463-99

R

Appellant

v

POLICE

Respondent

Hearing:         6 November 2009

Appearances: M Dorset for appellant

G Pilditch and L Owen for respondent

Judgment:      6 November 2009

JUDGMENT OF ALLAN J

Solicitors:

M Dorset, Rotorua

Crown Solicitor Rotorua

R V POLICE HC ROT CRI 2009-463-99  6 November 2009

[1]      This is an appeal against a District Court decision given on 20 October 2009 in which Judge Munro declined to grant Mr R   bail in respect of a pending charge of murder, and of participation in a criminal group.  Mr R   is alleged to have been one of a number of persons now jointly charged, who were involved in an attack on a young man at Murapara.  As a result of the attack the victim sustained injuries from which he subsequently died.

[2]      Judge Munro considered that the seriousness of the charge and the level of disorder and violence in Murapara arising from recent gang activities were such as to outweigh the appellant’s right to bail, despite the fact that he is even now under 18 years of age.

[3]      Certain  of  the  appellant’s  co-accused  were  similarly  refused  bail  in  the District Court.   Some have appealed to this Court.   Three of those appeals were heard by Woodhouse J on 28 and 29 October respectively.  Those were appeals by J P Leslie-Whitu CRI 2009-463-92, H Winitana, CRI 2009-463-98 and J Rewi CRI

2009-463-93.    Each appeal was successful.    Woodhouse J gave extensive consideration to the applicable bail provisions, and in particular to s 15 which enacts a presumption in favour of bail for persons under the age of 20 years.   On each appeal His Honour determined the District Court had failed to accord sufficient weight to the presumption in favour of bail.  Each appellant was released on bail on strict terms.

[4]      This morning Mr Pilditch for the respondent has responsibly indicated that in the light of the decisions in the previous appeals with which he takes no exception, it would not be appropriate for the police to maintain opposition to bail on appeal.  It is conceded that the District Court Judges, each for understandable reasons, have laid too much stress on the troubling situation that prevails in Murapara, and accorded insufficient weight to the requirements of s 15.

[5]      I agree that the approach adopted by Woodhouse J is correct;  that the police stance is appropriate, and for those reasons the appeal must succeed.

[6]      Mr R   has no previous record, and there is nothing to suggest that the presumption created by s 15 is rebutted here.    Accordingly, there will be an order that he be released on bail on the following conditions:

a)        He is to reside at 10 Arihia Street, Taupo;

b)        He is to be there and remain at the above address between the hours of

7 pm and 7 am nightly.

c)        He is to present himself at the door if called upon by the police. d)    He is not to go within 15 km of Murapara.

e)        He is not to consume illicit drugs or alcohol.

f)        He is not to associate with his co-offenders or any Crown witness while on bail.

C J Allan J