S v Police HC Wellington CRI-2008-485-160

[2008] NZHC 2033

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2008-485-160

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         12 December 2008

Counsel:         W M Johnson for appellant

K S Grau for respondent

Judgment:      15 December 2008

RESERVED JUDGMENT OF DOBSON J

[1]      This was an appeal from the District Court’s refusal to delete a condition of the appellant’s bail, as imposed by the District Court at Wellington.  The appellant has pleaded not guilty to a charge of male assaults female under s 194B of the Crimes Act 1961.  The charge arises out of a domestic incident on 5 October 2008 in which, according to the Police summary, the appellant, in an extremely intoxicated condition, assaulted the complainant, his de facto partner at their residential address

at 56A Pirie Street, Mt Victoria, Wellington.

S V NEW ZEALAND POLICE HC WN CRI-2008-485-160  15 December 2008

[2]      When first bailed, the appellant volunteered an Island Bay residential address and the condition that he live at that address became one of the terms on which he was bailed.

[3]      On at least two occasions since then, the complainant has conveyed to a victim adviser in the District Court her wish that this restriction on the appellant be lifted so that he can resume living with her.

[4]      I accept Ms Grau’s submission for the Police that the wishes of a complainant in such a situation should not dictate the outcome.  Whether consciously rationalised or merely subconsciously assumed, complainants in domestic assault situations often treat the risk of further violence at the hands of the defendant as less significant than the wish to resume the relationship.

[5]      Accordingly, there are a range of situations in which continuation of bail conditions that an accused person not associate with the complainant, and live at a separate address, are readily justifiable, even when the complainant does not wish them to be continued.

[6]      I accept, however, that  each  case  has  to  be  assessed  on  its  own  merits. Mr Johnson made much of the circumstances of this assault as being at the relatively minor end of the spectrum of seriousness of such assaults.  The complainant did not seek any medical attention, it appears there were no lasting physical injuries, and there has now been a considerable “cooling down” period in which both parties can reflect on the consequences of what occurred.

[7]      This is not a charge under s 49(1)(a) or (b) of the Domestic Violence Act

1995 where the Court would be required to treat protection of the victim of the alleged offence as its paramount consideration.

[8]      I am very conscious that the so-called “festive season” will occur before this matter is determined in the District Court.  From the appellant’s perspective, respect for a forced separation over Christmas and the summer holidays would have harsher effects than a forced separation at other times of the year.  On the other hand, sadly,

the pressures of this time of year make it statistically the period of greatest domestic violence  in  New  Zealand  society.    The  complainant  perceives  the  appellant’s violence as related to alcohol, and alcohol is often a part of the pressures of the Christmas vacation that no doubt contribute to the statistics on domestic violence. Here, however, the conditions of bail require that the appellant is not to consume alcohol.   It is to be hoped that compliance with that condition will substantially reduce the risk of any recurrence of the conduct complained of.

[9]      Mr Johnson was inclined to suggest that unless the appeal was  allowed, continuation of the original conditions of bail were “setting him up to fail” because of the inevitability that, with the co-operation and perhaps encouragement of the complainant, there would in any event be contact between them over the holiday period, triggering a breach of the bail conditions.  I do not accept the inevitability of a breach as sufficient grounds to vary the conditions of bail.

[10]     What Mr Johnson did not acknowledge is that the relaxation of conditions asked for exposes the appellant to the temptation of even more serious criminal conduct.  Under s 117 of the Crimes Act, charges involving attempts to pervert the course of justice including any conduct attempting to threaten a witness in Court proceedings to not give evidence, or indeed to alter evidence they would otherwise truthfully give.  A conviction on such a charge carries a maximum penalty of seven years’ imprisonment.  The other conventional justification for the condition appealed against here in domestic violence situations is to reduce this very real risk.   An alternative means of managing this risk is to reflect the ban on such attempts to influence the complainant in an alternative bail condition, and that is what I will order here.  To ensure the appellant is aware of the constraint on him, I will further require that he read and indicate he understands the terms of this judgment before signing a fresh bail notice containing the amended conditions.

[11]     With  considerable  reluctance,  I  accepted  the  ultimate  point  made  by Mr Johnson, which was that there were no circumstances about this case which required the Court to override the complainant’s wishes.

[12]     I accordingly indicated at the conclusion of the hearing that I would allow the appeal  by  substituting  the  conditions  of  bail  entered  into  by  the  appellant  on

6 October 2008 with the following:

a)       Not to consume alcohol

b)Not to offer any form of physical or emotional violence towards the complainant;

c)       Not to pressure the complainant in any way or seek to influence her in relation to the giving of evidence as to the incident on 5 October 2008 or the content of such evidence.

[13]     In addition, the acknowledgement immediately preceding the signature by the defendant on the notice of bail is to be amended to read:

I, Corey James S   (defendant) have received a copy of this notice of bail and have read and understand the conditions specified in it and the terms of the judgment of Dobson J varying these terms of bail dated 15 December

2008.

[14]     Removal  of  the  previous  bail  conditions  is  a  considerable  indulgence  in favour of the appellant.  He should know that if there is any coercive or threatening behaviour towards the complainant, or if any grounds arise for a charge that he has pressured her in relation to her evidence as to the 5 October 2008 incident, then it will count seriously against him in having sought a relaxation to which it would then be apparent he was not entitled.

Dobson J

Solicitors:

W M Johnson, Wellington for appellant

Luke Cunningham & Clere, Wellington for respondent