R v Police HC Wellington Cri-2009-485-67

[2009] NZHC 625

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-485-000067

BETWEEN  R   

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         26 May 2009

Appearances: B S Yeoman for Appellant

D La Hood for Respondent

Judgment:      26 May 2009

ORAL JUDGMENT OF GENDALL J

[1]      This  is  an  appeal  against  a  decision  of  Judge  J  F  Moss  made  in  the District Court at Lower Hutt declining to grant bail to the appellant pending his trial on four charges of entering buildings or premises without authority, intending to commit crimes in them.

[2]      Essentially, Judge Moss based her decision upon the grounds that she was not satisfied the appellant would not offend whilst on bail;  that there was a risk of that in terms of s 8(1)(c);  and that despite the proposition advanced by the appellant that he could be subject to a condition of electronic monitoring whilst on bail, she was not prepared to grant it.

[3]      Mr Yeoman, in support of the appeal, accepts that the onus of satisfying the Judge that bail should be granted was on the appellant by reason of his criminal history.  But Mr Yeoman says Her Honour misdirected herself because she did not

understand or apply proper consideration to what counsel says is “the criteria for

R   V NEW ZEALAND POLICE HC WN CRI-2009-485-000067  26 May 2009

electronic bail”, essentially, his argument being, that it restricted the appellant to a home.

[4]      It needs to be understood there is no such thing as “electronic bail” in its own right.  There is bail which is granted under the Bail Act subject to certain conditions. There can be all manner of conditions, one of which is a condition for electronic monitoring.   But of itself, it does not prevent offending whilst on bail although obviously it may reduce the risk of offending away from the home.   But the real issue is whether bail should have been granted subject to this condition.

[5]      The  appellant  has  an  appalling  criminal  history  of  something  like  170 previous convictions, including 26 for burglary and unlawfully present in buildings; he has had three for failing to answer bail;  he committed offences in Taranaki whilst on bail, as a result of which he subsequently pleaded guilty although to reduce charges.   I note that he applied for bail in the Hawera District Court, which was declined.   He appealed that decision and Venning J expressed the view that this appellant was “never going to be granted bail on these charges”, given his previous history of offending.

[6]      Regrettably, that is the same situation here.   The Court has to consider the mandatory factors in s 8.  The risk of offending whilst on bail was apparent to the Judge and remains apparent to me.  Of course, the appeal is against the exercise of Her Honour’s discretion (although in bail matters that generally might apply to the discretionary conditions imposed) but there was ample evidence before her of a real risk that the appellant would offend whilst on bail.  Indeed, he had.

[7]      The police have actively opposed bail for reasons that are set out in an extensive  report  in  relation  to  the  application  for  bail  subject  to  electronic monitoring.  I do not need to go into those simply because I agree entirely with the decision of Judge Moss that the onus on the appellant to satisfy the Court that he should be granted bail has not been discharged.   And it was, and has not been discharged by a very wide margin.

[8]      Accordingly, the appeal is dismissed.

J W Gendall J

Solicitors:

B S Yeoman, Lower Hutt for Appellant
Crown Solicitor, Wellington for Respondent