S v Police HC Wellington CRI-2008-054-100

[2008] NZHC 461

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2008-054-100

S

Appellant

v

THE NEW ZEALAND POLICE

Respondent

Hearing:         8 April 2008

Appearances: M J Lillico for the Appellant

J Murdoch for the Respondent

Judgment:      8 April 2008

ORAL JUDGMENT OF CLIFFORD J

[1]      The appellant, Mr S  , faces one charge under s 188(1) of the Crimes Act 1961 for wounding with intent to cause grievous bodily harm.   The charge relates to an altercation between the accused and his brother, described by the Crown as a prolonged and vicious attack by the appellant on his brother at his home on the evening of 6 January 2008.   The complainant suffered a fractured eye socket and severe bruising and lacerations to the head.

[2]      This morning Mr Lillico has advised me that Mr S   also suffered a serious injury himself during the incident, namely a laceration to his scalp.  Whilst

Mr Lillico notes that the complainant was, of course, entitled to be free from violent

S V POLICE HC WN CRI-2008-054-100  8 April 2008

attacks by his brother, nevertheless he submitted that the violence involved in the incident had to be seen as a whole.

[3]      The appellant was released on bail by the Palmerston North District Court on

7 January 2008.  The Judge imposed a number of conditions including a curfew from

7.00am to 7.00pm.

[4]      On 22 January, the terms of curfew were varied by consent.  It was agreed that the appellant was permitted to drive within the curfew hours, provided that it was  for  work  purposes  and  provided  that  prior  to  carrying  out  his  driving  he contacted the Palmerston North Police with details of the work he was proposing to undertake.  There were some other conditions.

[5]      Mr S   subsequently applied for his bail terms to be varied, by the deletion of the curfew.   On 27 February 2008 District Court Judge Atkins in the Palmerston North Court dismissed that application.  The Judge did, however, agree that the curfew hours would be varied.  The hours of curfew were accordingly varied to be from between 8.00pm to 6.30am.

Approach on appeal

[6]      Mr S   appeals to this Court against Judge Atkins’ refusal to delete the curfew condition of bail.

[7]      As such, it is well settled that a Judge of this Court should only interfere on appeal if satisfied either that the District Court Judge erred in law, or failed to take into  account  relevant  considerations,  gave  undue  account  to  irrelevant considerations, or was plainly wrong.

Submissions

[8]      Mr Lillico, for Mr S  , in his written submissions, submitted that the Judge erred in fact and in law in holding there was justification for the curfew. Particularly, he submitted that the Judge erred by:

a)        Failing to consider past behaviour as an indicator of future conduct;

b)Failing to match the risk allegedly posed by Mr S   with bail conditions;

c)        Placing too much weight on the views of the complainant; and d)     Placing too much weight on the seriousness of the offending.

[9]      Mr  Lillico  relied  on  the  decision  of  R  v  Fatu  CA  15/12/2005,  which considered the need to take into account s 18 NZBORA (freedom of movement) when imposing a curfew as a condition of bail.

[10]     For Mr S  , Mr Lillico’s core submission was that the identified risk, of possible   interference   with   witnesses,   was   addressed   by   the   non-association condition.  Accordingly, there was no need for the curfew, and it was a condition that was not reasonably related to the identified risk.

[11]     In that context I was advised that Mr S   is 50 years of age and has had no prior offending during the past 29 years and no obvious pattern of nocturnal unlawful behaviour.

[12]     For the Police Ms Murdoch submitted that  the District  Court  Judge had identified a reasonable nexus between a risk of interfering with the complainant and therefore the curfew condition.   The curfew was a reasonable condition given the nature and time of the offending and the real risk of the appellant contacting the complainant.

[13]     Ms Murdoch referred me to some handwritten police notes from the original bail  hearing.    Those  notes  referred  to  allegations  of  previous  violence  by  Mr S   against the complainant, including one reference to an attack at a funeral.

Discussion

[14]     The imposition of bail conditions was considered by the Court of Appeal in the Fatu decision where the Court held that there must be a “rational link” between the condition and the reason for its imposition.  The condition must be imposed for one of the three reasons outlined in s 31(3).

[15]     In the District Court, the Judge referred to the reasons put forward by the Police in support of the imposition of a curfew as a condition of bail in the following terms (at [2]):

The grounds put forward by the Police in favour of retaining the curfew are that there are fears on the part of the alleged victim, who is the victim with respect to an offence which is a serious one, that the victim has concerns about you [Mr S  ] contacting him in some way or bringing pressure to bear on.

[16]     Clearly, therefore, it was s 31(3)(b) that was relied on to ensure that the appellant does not interfere with any witness or evidence.

[17]     The  particular appropriateness  of curfews  as  conditions  of  bail  has  been considered in several cases.  In Fatu the Court of Appeal upheld an application for leave to appeal a High Court decision to decline an application for variation of bail. In that case, the Court concluded that there was no rational nexus between the curfew and the risk that the defendant would interfere with Crown witnesses.

[18]     The  Court  held  that  the  imposition  of  a  residential  condition  and  a geographical radius restraint adequately safeguarded against the possibility that the appellant would interfere with witnesses so as to justify the deletion of a 10.00pm-

6.00am curfew.  The Court stated at [7]:

Were he minded to interfere with witnesses he could do so during the 16 hours of each day when he is not subject to nocturnal constraints on his whereabouts.   There is no rational link between the curfew and the apprehension of risk in terms of s 8(1)(b) of the Bail Act.

[19]     In Cole v Police HC AK R170/02 13 December 2002, a  case involving repeated drink-driving, a condition that the defendant not drink alcohol was seen as sufficient to prevent offending whilst on bail.  A further condition that the defendant not  drive  was  therefore  seen  as  excessive.    In  considering  whether  both  “no drinking” and the “no alcohol” conditions were necessary, the Judge stated at [11]:

In my judgment, that [the no alcohol condition] is all that is required to meet the object of public safety to which the District Court Judge correctly turned her mind.  Provided that Mr Cole does not drink alcohol, there should be no problem of drinking and driving.

[20]     In my view similar considerations apply in this case.  The condition that the appellant does not associate with the complainant has no time limit.  Therefore if the appellant were to approach and endeavour to interfere with the complainant at any point during the hours of the current curfew, he would automatically be in breach of his conditions of bail in any event.

[21]     In light of that consideration, I need to consider the need for the curfew.

[22]     On the basis that the imposition of the non-association condition addresses the risk of the appellant interfering with the plaintiff, I consider that the additional condition as to a curfew is unnecessary.   Whilst I accept that this alleged offence occurred at night, I have not been provided today with any particular explanation as to why in this instance the curfew addresses, in a way not addressed by the non- association condition, the only relevant risk identified.

[23]     I note here that Mr S   has no previous convictions for violence and has had no convictions at all for 29 years.  In particular there would not appear to be any suggestion that there is a pattern of nocturnal behaviour associated with the alleged offending.

[24]     I therefore allow the appeal, and vary Mr S  ’s bail by the deletion of the  current  curfew  condition.    In  order  to  make  the  position  absolutely  clear, however, I vary the non-association condition as follows:

•Not to associate with the complainant, including not to communicate in any manner whatsoever with the complainant, either directly himself or indirectly through any other person.

“Clifford J”

Solicitors:

Ord Lillico, Wellington for the Appellant

Luke Cunningham & Clere for the Respondent