T v Police HC Wellington CRI 2007-006-1849

[2008] NZHC 2260

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2007-006-001849

T

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 April 2008

Counsel:         M Hardy-Jones and P Watson for Applicant

M Snape for Respondent

Judgment:      8 April 2008

ORAL JUDGMENT OF RONALD YOUNG J

[1]      Mr  T  ,  who  faces  trial  for  murder,  asks  that  his  bail  be  varied  by (i) the removal  of  the  prohibition  on  the  travel  to  Marlborough  and  (ii)  the substitution of residence from his current residence in Christchurch to Spring Creek, Blenheim.

[2]      The alleged offending arose from a confrontation between members of the Lone Legion Motorcycle Club, including the applicant, and another group of men in Blenheim in 2007.  A member of the other group was shot.  Much of what happened that day was recorded on the video cameras and there were, it seems, a number of

eye witnesses.  It was not alleged that the applicant actually pulled the trigger of the

T V NEW ZEALAND POLICE HC WN CRI 2007-006-001849 8 April 2008

gun, but it is alleged he was a party to the murder.  He denies being a party to the murder.  The trial is set, as I understand it, for September 2008.

[3]      In November 2007 the applicant sought bail from the District Court.  It was opposed  by  the  Crown.    The  Judge  identified  the  Crown  allegations  that  the applicant was in close proximity to the person that pulled the trigger, and  was actively encouraging him at the time.  The Judge summarised the police case in his decision at [5] and [6] of that decision:

[5]       The Police opposition to bail submits there is a real and significant risk of interference with witnesses, including the nearby residents who were part of this confrontation and are connections of the deceased.  That risk of interference, it is submitted, are highlighted by and inherent in the context of a motorcycle club or gang ensconced in close proximity to this rival faction, who the Police assert are through whanau connections affiliated to other rival gangs; that tensions are high; that the climate for both witness intimidation and ongoing internecine violence are rife.  Concomitant to that is the ground of opposition that offending whilst on bail could go hand in hand with that.

[6]       The Police submit   that  the  offence is  serious.   That  there is a strength of evidence and as a fall back position, Sergeant Frost submits, the Police would expect a 24 hour curfew.  They have checked out and verified as available and appropriate if needs be the suggested Christchurch address, where it is proposed the defendant would live.   But the Police submit a

24 hour  curfew  would  be  in  line  with  the  bail  conditions  imposed  on co-defendant Mackle, and would recognise the seriousness of the offence,

the part played with the principal alleged offender and that a 24 hour curfew

would, by placing him in the company of his host family at all times, prevent opportunity to contact witnesses and co-offenders.

He noted Mr T   had a Christchurch address to reside at, and accepted a curfew as appropriate.

[4]      The Judge then said at [15] of his decision:

[15]     The  removal  from  proximity  and  from  this  region  with  strict conditions  falling  short  of  24  hour  curfew  but  nevertheless  including  a curfew, I consider would reduce that risk of interference or offending whilst on bail, to the point that just cause for continue detention cannot be made out.

He  then  imposed  conditions  of  bail  including  residence  in  Christchurch  and  a curfew.

[5]      The  essence  of  the  Judge’s  decision  to  grant  bail  was  the  fact  that  the applicant could reside in Christchurch, out of the Blenheim area, where risk of interference  with  witnesses  and  re-offending  was  assessed  by  the  Judge  as significant.

[6]      This  application  for  variation  to  his  bail  terms  is  based  on  Mr  T  ’s observation in his affidavit, that he is finding it difficult to reside away from his family during this time.  He has also, since the charges were laid, married his long- term partner who currently resides at the Spring Creek property in Blenheim.

[7]      It  is  clear  from  the  decision  of  Judge Barry  a  very  important  factor  in granting bail was the ability to remove the applicant from the area of the alleged offending.  Understandably, given a death by shooting had occurred, tensions were high between the two groups.  Without the applicant’s offer to remove himself from the Blenheim area, bail may well have been refused.

[8]      There is, in my view, nothing essential that has changed in the meantime, other than the applicant’s understandable desire to live with his family.  A member of the other group, has been charged as a result of another confrontation between members supporting the applicant’s group and members supporting the deceased’s group.   This illustrates, in my view, a continuing potential conflict between the groups.   While of course the applicant should not be punished for an offence by others, it illustrates that the tension the Judge identified as a reason to grant bail only on the basis that Mr T   reside in Christchurch still remains.

[9]      I am, therefore, not satisfied that the proper course here is to vary bail.  The application, therefore, for variation of bail is refused.

……………………………

Ronald Young J

Solicitors:

Crown Solicitor, Wellington