S v Police HC Wanganui CRI-2009-067-558

[2010] NZHC 284

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2009-067-558

S 

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         26 February 2010 (Heard at Wellington)

Counsel:         D Goodlet for Appellant

M Anderson for Respondent

Judgment:      26 February 2010 at Oral

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an appeal against the refusal of bail.  The appellant faces charges in the District Court at Taihape of intentional damage, trespass, threatening behaviour, assault with a weapon, misuse of the telephone, and threatening to do grievous bodily harm.   Those charges all arise out of incidents related to the property previously owned by the appellant which was the subject of a mortgagee sale.  The complainant in respect of the charges is the purchaser of the property at mortgagee

sale.

S   V NEW ZEALAND POLICE HC WANG CRI-2009-067-558 26 February 2010

[2]      The appellant was arrested on 10 December 2009 and released on police bail. Conditions of bail were that he was not to contact, either directly or indirectly, the victim and not to go to Mangaweka where the property was situated.  He did go to the property and spoke to the complainant and was arrested for breach of the bail. He appeared on 14 December and bail was again granted on some more stringent conditions.  He was arrested on 14 December for breach of the condition as to non consumption of alcohol.  There were further breaches of the curfew.  He appeared again on 15 January when bail was again granted.  He was, on 25 January, stopped driving  through  Mangaweka  in  breach  of  the  conditions.    On  27 January  his conditions of bail were varied by consent.

[3]      On  31 January  he  went  to  the  Taihape  police  station  and  make  some complaint about the way in which his curfew was being administered and asked police not to check him late at night.  He was in Taihape in breach of the curfew and the police, no doubt considering that enough was enough, opposed bail when the appellant next appeared on 8 February.

[4]      Judge Atkins, in a careful decision, went through the various matters.   It appears that the appellant was represented by counsel, although the appellant himself seems to have intervened in the hearing on a number of occasions.  The Judge said that the situation which had developed seemed to be an on running one and it seemed that  the  appellant  is  unable  to  comply  with  bail  conditions.    He  noted  some reluctance and said that he felt constrained to remand the appellant in custody.  By reason of the continuing breaches of bail term, and he said there does not seem to be an ability on his part to settle things down and wait for matters to be resolved by a Court.  He noted that there was a status hearing on 8 March.  The indications which I have from counsel are that there is the possibility of a defended hearing on 12 April. Mr Anderson says that a full day is available but Ms Goodlet is less sanguine about the prospects of the matter being heard on that date.

[5]      The principles to be applied in an appeal against a bail decision are well established and are not in dispute.  It is incumbent on the appellant to establish that the decision in wrong in principle, or that the weighting of and taking into account of the various relevant considerations is such that the decision is plainly wrong.

[6]      Ms Goodlet in support of the appeal submits that the primary focus must be on the risks in s 8(1) of the Bail Act and that is undoubtedly correct.  Although over that must be overlain the fact that the appellant has been released on reasonable terms and conditions designed to address those risks and has demonstrated a failure to comply with those  conditions.   Ms Goodlet  submits that the conditions have achieved the purposes of addressing the s 8 risks in that, while the earlier breaches related to contact with the complainant and matters of that sort, the latter breach was not of that character and was more in the nature of the appellant having differences with the police in Taihape over the way in which compliance was being monitored.

[7]      While the length of time that the appellant will serve in custody is a matter of concern that must be weighed against other matters.  It does seem that the appellant will, if bail is not again granted, spend a period in custody when a custodial sentence is certainly not inevitable and it may well be that he would serve a period which will be close to what a custodial sentence would be if one were imposed.  The time until hearing was clearly a matter that was in the mind of the Judge and which underlay his reluctance to remand him in custody.  However, I do not consider that it can be said that the Judge was wrong to take the course which he did.  The breaches of bail which had occurred throughout the whole period were, some of them, quite serious and directly related to the offending.

[8]      The  appellant  has  described  his  bail  conditions  as  a  joke.    While  the immediate trigger for the refusal of bail was not directly related to the s 8 risks, I can have no confidence that if the appellant were now released on bail that, given the attitude to compliance which he has demonstrated, matters would remain as they have been, namely that there has been no recent contact with the complainant or matters of that sort.

[9]      Accordingly, I do not consider that it has been demonstrated that the decision of the Judge was wrong and the appeal must be dismissed.

“A D MacKenzie J”

Solicitors:           Ms Goodlet, Barrister & Solicitor, Wanganui for appellant

Luke Cunningham Clere, Wellington for respondent.