S v Police HC Napier Cri-2010-441-5

[2010] NZHC 582

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2010-441-05

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         31 March 2010

Appearances: A Malik for Appellant

S B Manning for Respondent

Judgment:      31 March 2010

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an appeal against the refusal of bail.

[2]      The history of this matter is that the appellant’s application for bail was initially dealt with by Judge Adeane on 12 February 2010 and bail was refused.  The appellant  appealed  against  that  refusal  and  her  appeal  was  heard  by  me  on

25 February.    On  2 March  I delivered  a  judgment  under  which  the  matter  was remitted to the District Court for rehearing under s 131 of the Summary Proceedings Act 1957.  The matter came before Judge Rea on 12 March for that rehearing.  In his judgment on that date he noted that an address had been put forward in Hawke’s

Bay.  He said:

S V NEW ZEALAND POLICE HC NAP CRI-2010-441-05  31 March 2010

I consider that looking at the decision that MacKenzie J gave I am bound to grant bail but I have to be satisfied that an appropriate address is available for bail for this particular defendant.   I consider that an address out of Hawkes Bay and, preferably one that is amendable to electronic monitoring is the only particular address that I would be prepared to approve.

[3]      He indicated that the address then proposed was not suitable but he said:

…  I am prepared to accept overall the decision that the learned High Court Judge has arrived at and not re-visit the matter and, in effect, work around it but I am determined that Miss S   must have an appropriate address away from Hawkes Bay before I would be prepared to release her from custody.

[4]      He then effectively invited a further application if another address could be obtained.   The matter came before him again on 17 March when an address in Wairoa was proposed.  That was deemed unsuitable by police.  The application for the Hawke’s Bay address (which was an address in Whakatu which had been proposed both on the appeal before me and on the further application before Judge Rea) was renewed.  The Judge reiterated that he did not consider that that address was suitable and that the application failed.   The appellant appeals against that decision.

[5]      The appellant submits that the learned Judge erred in the following respects:

a)       By failing to consider the likelihood that the appellant would interfere with witnesses or collude with her co-offenders if granted bail;  and

b)By failing to consider whether appropriate conditions of bail could be imposed to alleviate any risk such as travel restrictions and non association conditions.

[6]      It is clear from Judge Rea’s decisions, both on 12 March and 17 March, that he had interpreted this Court’s judgment on the earlier appeal as requiring a grant of bail if an appropriate address was available.  That was not what I had intended to convey in that judgment.  I had expressed the view that the original hearing before Judge Adeane had not given sufficient consideration to the risks in relation to the factors in s 8(1) of the Bail Act 2000, and that the risks needed to be reassessed against  the  s 8(1)  criteria.    I  noted  that  an  address  had  been  proposed,  but  no

consideration had been given to the adequacy of the address.   For that reason, I considered  the  better  course  was  to  remit  the  matter  to  the  District  Court  for rehearing.  I had not intended to convey the impression that the analysis of the s 8(1) factors should necessarily lead to a granting of bail subject only to a suitable address. Rather, I had intended to convey that the s 8(1) criteria needed to be considered in the light of all the circumstances including any address which might be proposed.   I did not intend to exclude the possibility that the risks might preclude any granting of bail when the matter was reconsidered against the criteria.

[7]      On that basis, the approach adopted by Judge Rea has been advantageous to the appellant.   He has approached the matter on the basis that the risks must be capable of being met by a suitable address, and the only matter for consideration by him was whether the address was suitable.

[8]      The appellant submits that the likelihood of interference with witnesses or collusion   with   co-offenders   was   not   adequately   addressed   by   the   Judge. Mr Manning for the respondent submits that in reaching his decision, the learned Judge did have regard to the risks presented by the appellant in light of the serious charges which she faced.  In both decisions, of 12 March and 17 March, a very clear concern as to the release of the appellant on bail within Hawke’s Bay was expressed. The Judge said in his decision of 12 March:

I consider that if Miss S   wants to get bail from me she will need to supply the address that I have said.  Otherwise I would not be prepared to grant her bail on the basis that I consider an address in the Hawke’s Bay area is simply setting her up to fail.  There is a strong likelihood that there would be trouble, reoffending, or interfering with witnesses.  Obviously, one can’t point to any evidence.  It is simply relying on the experience that I have as a Judge.

[9]      It is clear from that passage that the Judge did relate the risk quite specifically to the s 8(1) factors.  His statement that “one can’t point to any evidence” is, as he says, a statement of the obvious in that what is being assessed is a risk of future events.  He said that he was relying on the experience that he has as a Judge.  That was an assessment which he was properly able to make.  He has done so on the basis of a proper application of the criteria.  That is not a decision with which this Court should interfere.

[10]     Accordingly, the appeal must be dismissed.

[11]     It is perhaps desirable that I should add that, if there were to be any change of circumstances which might justify a further application for bail, it would be desirable that the risks be reassessed de novo at that stage.   The matter should not be approached on the basis that the decision of this Court of 2 March would have any bearing  on  any  renewed  application.    In  saying  that,  I  am  not  to  be  taken  as

suggesting in any way that there may be any justification for any further application.

Solicitors:           Crown Solicitor, Napier for respondent

McKay Hill, Napier for Appellant

“A D MacKenzie J”