T v Police HC Napier Cri-2008-441-6

[2008] NZHC 589

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2008-441-06

T

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 April 2008

(Heard at Wellington)

Appearances: A F Rickard-Simms for Appellant

K S Grau for Crown

Judgment:      24 April 2008 at Oral

ORAL JUDGMENT OF MACKENZIE J

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

[2]      The appellant appeared in the District Court at Hastings on four charges: One of male assaults female; one of breach of a protection order; one of theft of the complainant’s handbag; and one of possession of an offensive weapon (a knife).

[3]      At the time of the alleged offending he was on bail on two counts involving an unlawful taking of a motor vehicle and driving while disqualified.  His application

for bail was considered on 11 March by Judge Rota, who in a careful and quite

T V NEW ZEALAND POLICE HC NAP CRI-2008-441-06 24 April 2008

lengthy decision refused bail.   He noted, however, that at different stages of the proceedings, other bail applications might be mounted.

[4]      The appellant lodged this appeal against that decision and also, taking up the suggestion in Judge Rota’s decision, applied again to the District Court at Hastings for bail on 17 April.  That application was considered by Judge Adeane who again refused bail.

[5]      This appeal is against the decision of Judge Rota, but I take into account in dealing with it all of the circumstances including the later application for bail.

[6]      Mr Rickard-Simms, in support of the appeal, has ably advanced all that could possibly be said on the appellant’s behalf.  He submits that the appellant was entitled to be released on bail unless a real risk was established of either interference with the witnesses – in particular the complainant – or offending while on bail.  He submits that the learned Judge has not in his decision given full weight to the presumption in favour of release and the onus on the Crown to overcome that.

[7]      Judge Rota did in fact consider the risk of offending while on bail.   He described the appellant as somewhat a recidivist offender with a history of breaching bail and a history of offending while on bail, and noted that the present charges arose from actions committed while on bail.  He specifically noted that before the Court can remand this man in custody it must be satisfied that there is a real and significant risk of any of the three matters in s 8 although only two of those are particularly relevant here, there being no real suggestion of a risk of non-appearance.   He expressed himself as coming to the view in the balancing exercise that he is satisfied there is a real and significant risk that this man will offend whilst on bail and to a lesser extent, but still a significant extent, he was satisfied there was a potential for him to interfere with witnesses, namely the complainant.

[8]      I do not think that it can possibly be said that the Judge has not properly applied the correct test in reaching the decision which he did.  The grant or refusal of bail involves the exercise of a discretion and that discretion cannot be shown to have been improperly exercised.

[9]      The  opposition  to  bail  form  notes  that  the  appellant  has  85  previous convictions including three for male assaults female; one for common assault (domestic) and one  for indecent  assault on  a  female  over  16  years  and  he  has previous convictions for failing to answer bail and two previous convictions for breaching periodic detention and a lengthy list of dishonesty, driving and violent offences.    Without  analysing that  in  any detail,  that  history,  in  my view,  fully justifies the view which the Judge took.

[10]     There is, before me, a letter from the appellant, and also a letter from the complainant in which she expresses herself as happy for the appellant to live with her.  That latter letter was before Judge Adeane when he considered the matter and he said that the prospect of domestic violence victims and alleged perpetrators living together pending resolution of matters will always be a troubling one.  He noted the victim impact statement obtained from the complainant at an earlier stage, dated 9

March, in which she said:

I am now very fearful if he gets bail as I feel he is capable of anything.

[11]     Although that letter is not strictly relevant to an appeal against Judge Rota’s decision, I consider, like Judge Adeane, that limited reliance should be placed on that.   The situation of women who are in a violent relationship and the change in attitude which they may have is a common issue with which the District Court in particular must often deal and Judge Adeane’s description of it as going without saying that the prospect of domestic violence victims and alleged perpetrators living together pending resolution of matters will always be a troubling one might be suggested to be something of an understatement.

[12]     In all the circumstances, I consider that there are no grounds shown on which I should interfere with the exercise of the discretion of Judge Rota in particular, but indeed of either Judge, in the approach which they have taken to the question of bail.

[13]     For these reasons, the appeal is dismissed.

“A D MacKenzie J”

Solicitors:          Souness Stone, Hastings for Appellant

Luke, Cunningham & Clere, Wellington for Respondent