T v Police HC Christchurch CRI 2008-409-177
[2008] NZHC 1720
•6 November 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2008-409-000177
T
Appellant
v
POLICE
Respondent
Hearing: 6 November 2008
Counsel: A J Bailey for Appellant
T Mackenzie and S Jamieson for Respondent
Judgment: 6 November 2008
JUDGMENT OF FOGARTY J
[1] The appellant is charged with disorderly behaviour and possession of an offensive weapon. According to the police summary, at about 3 pm on Wednesday,
27 September, six young Afghani males had had an altercation with another group of young people at the bus exchange in the centre of the city. One of the other young people said that this group wanted a fight. A telephone number was provided and this group of defendants are said to have sent text messages to the other group
suggesting a meeting later in the evening.
T V POLICE HC CHCH CRI 2008-409-000177 6 November 2008
[2] Later in the evening three car loads of males, including the defendants, stopped outside the agreed meeting place, leave the vehicles holding baseball bats and begin threatening the occupants of that home.
[3] Judge Bisphan dealt with all the applications for bail at the same time. The police in the case of all defendants applied for a curfew condition from 7 pm to 7 am. As I understand it from Mr Mackenzie, various curfews were imposed, in one case dependent on the work commitments of one of the defendants and another on a previous history of one defendant.
[4] This appellant is a 17 year old boy who lives with his parents. There is no previous history. He is remanded to 25 November for a status hearing. He has been offered diversion. Mr Bailey says his case is that he was essentially on the fringes of this group and certainly did not arrive with any weapons.
[5] The law is settled. Conditions of bail have to be related to risk which is a forward looking exercise. The fact that offending has occurred in the past is not of itself determinative of the issue. Very often there are a set of circumstances which make it very unlikely that the offending will occur again. This is one of those, in my view. As is often the case when we sit here on appeal we have more time to do a forward looking analysis than is available to the District Court Judge. The District Court Judge’s notes do not record whether he made any forward looking analysis. I am satisfied there is a very real risk that the Judge simply took as a starting point the police request for curfews and then made adjustments.
[6] All these youths are Afghani but they are not, so far as I can tell, part of an organised criminal gang, which is sometimes the situation we face. In those situations there is always an ongoing risk of further offending. For these reasons I think there is a material risk that there was an error of principle in the analysis which leaves this Court free to substitute its own analysis.
[7] In my view there is no significant risk of the appellant getting into another similar fight and such risk as there is can be simply addressed by maintaining the condition that he is not to associate or communicate with his alleged co-offenders.
[8] Accordingly, the appeal is allowed to the extent of deleting the curfew condition but otherwise leaving it intact. I have considered the question of whether or not there should be a reporting clause. I do not think there is any significant risk of this young man absconding between now and 25 November. The parents are not here today. It may well be that one of the parents of this young man will turn up to the Court on 25 November at which time arrangements might be made for them to accept the obligation to ring the police if for any reasons the appellant stops residing with them and in that way the Court can be satisfied that whatever the future Court processes are this young man will turn up to hearing dates.
Solicitors:
A J Bailey, Christchurch, for Appellant
Raymond Donnelly & Co, Christchurch, for Respondent
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