S v Police HC Hamilton CRI 2010-419-1

[2010] NZHC 56

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2010-419-1

S

Appellant

v

POLICE

Respondent

Hearing:         4 February 2010

Appearances: K Quinn for appellant

R Annandale for respondent

Judgment:      4 February 2010

JUDGMENT OF ALLAN J

Solicitors/counsel : K Quinn, Hamilton

Crown Solicitor Hamilton

S  V POLICE HC HAM CRI 2010-419-1  4 February 2010

[1]      This is an appeal against a decision of Judge Burnett in the Te Awamutu District Court on 9 December 2009, in which she declined the appellant bail pending sentence.

[2]      The appeal as originally formulated relied predominantly upon the ground that Mr S  ’s assigned counsel had not been notified of his arrest and that she was not therefore given an opportunity to undertake the bail application on his behalf in the District Court.  Instead the Duty Solicitor did so on grounds which appear to have been somewhat limited.

[3]      The alleged offending background is simple enough.  Mr S   is alleged to have assaulted his former partner and there is also an allegation of breach of a protection order.  Judge Burnett declined bail on the primary ground that she was not satisfied that the safety of the complainant could be secured, otherwise than by a remand in custody.

[4]      Today Ms Quinn has advanced a number of grounds which were not argued before Judge Burnett.   She points out that the appellant has not previously been charged with assault or breach of a protection order, and that there is every prospect that even if convicted he may well avoid a custodial sentence.  A significant remand in custody would be inconsistent with that outcome.  She says that earlier breaches of release conditions which were referred to in the District Court are of some antiquity,  and  there  appears  to  be  a  possibility  that  the  complainant  may  have changed her mind about contact with the appellant.  She argues that any lingering concern about the complainant’s safety could be dealt with by way of a curfew Finally,  she  advises  the  Court  that  the  disputed  facts  and  sentencing  hearing originally scheduled for 25 January 2010 did not proceed because no Judge was available.  The hearing is now adjourned until 15 March 2010.

[5]      In my view it is not appropriate for the Court to entertain the majority of these arguments which were not run before the District Court.  I accept that if the complainant has changed her mind, that might well be a change of circumstances which would in theory justify this Court in revisiting the Judge’s decision, based as it

was primarily upon concerns about the complainant’s safety.  But arguments which were not run before the District Court ought not to be the subject of argument in this Court.

[6]      There has been one important change of circumstances which would justify the appellant making a fresh application for bail in the District Court.  That is the fact that the hearing scheduled for 25 January has now been adjourned to 15 March. That being so, the appellant will have been on remand in custody for some three months before he comes up for sentence.   That is a different time scale from that which confronted Judge Burnett.

[7]      Moreover,  if  as  Ms  Quinn  believes  may  be  the  case,  the  complainant’s attitude to the appellant has changed, that is a change of circumstance which can properly underpin a fresh application for bail to the District Court.  The remaining arguments which Ms Quinn seeks to advance can properly be addressed to that Court in relation to the changes of circumstance to which I have referred.

[8]      I am of the view that the proper course for the appellant to follow is to make a fresh application for bail in the District Court.  He is unable to mount an argument as the Court record presently stands that the decision of Judge Burnett was wrong in principle.

[9]      Accordingly, the appeal is formally dismissed.

C J Allan J