T v Police HC Wellington CRI-2007-485-136

[2007] NZHC 1378

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2007-485-136

T

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 December 2007

Appearances: S J Gill for appellant

M W Snape for respondent

Judgment:      5 December 2007

ORAL JUDGMENT OF CLIFFORD J

[1]      This is an appeal against a decision of the District Court at Wellington on 15

November 2007, declining to vary a bail condition barring the appellant, Mr T  , from going within 50 metres of a  Lower  Hutt  address  where his  wife and  her children are living.

[2]      Mr T   is facing one indictably laid charge of indecent assault.

[3]      The  complainant  in  the  case  against  Mr  T    is  his  14  year  old stepdaughter.  She lives with her father in Hamilton, but in the school holidays she

T V NEW ZEALAND POLICE HC WN CRI-2007-485-136 5 December 2007

comes down and stays with Mr T   and his wife, her mother.   This has been going on regularly.

[4]      The alleged offending involves Mr T   massaging his step-daughter, to which she consented.   It is said the complainant then lost consciousness, due to alcohol consumption.   She awoke, she alleges, to find Mr T   straddling her, kissing her  and massaging her bare breasts.   Mr  T    strenuously denies  the offending.

[5]      Mr T   was initially granted bail, by consent.  On 11 October the District

Court, on the application of the Police, imposed two conditions on Mr T  ’s bail:

a)        Not to associate with any female under 16 years of age, and

b)Not to go within 50 meters of the address where his wife and her children are living.

[6]      Mr T  ’s wife also has a nine year old daughter – Caitlyn who lives with her.  The house where Mr T  ’s wife lives – and where Mr T   used to live, has recently been modified to help Mr T   cope with a disability.

[7]      Mr T   applied for the conditions preventing him from moving home – to take advantage of those modifications.   Mr T  ’s wife, Caitlyn’s mother, supported that application.   She confirmed to the District Court Judge she had no concerns with Mr T   moving home and associating with Caitlyn.

[8]      In considering the application, the District Court Judge said the question was whether the condition was a reasonable one, addressing a real and significant risk – in this instance of Mr T  ’s offending on bail against Caitlyn.

[9]      The Judge concluded, having weighed up a variety matters, that there was a need for the condition and were it not for that condition she would, in her view, find that there was a real and significant risk of offending on bail and therefore that bail should be refused.

[10]     On that basis she declined Mr T  ’s application to vary the condition.

Approach on appeal

[11]     This  is  an  appeal  against  the  District  Court  Judge’s  decision  where, exercising her discretion, she declined to vary the terms of Mr T  ’s bail.

[12]     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, failed to take into account relevant considerations, gave undue account to irrelevant considerations, or was plainly wrong.

Submissions on appeal

For Mr T 

[13]     Mr Gill has first submitted that Mr T   strenuously denies this charge.  He has provided a detailed statement.   His position is that he caught the complainant drinking vodka straight from a bottle, and that he found her passed out in the toilet.

[14]     Mr  Gill  advises  that  that  statement  has  been  supported  by an  evidential interview carried out with Catlyn but has himself not seen that interview.   The complainant is now living in Hamilton and there is a condition of bail already that Mr T   is not to go to Hamilton.

[15]     As I have noted, Mr Gill pointed out that Caitlyn has been fully interviewed and has not made any allegations against Mr T   of inappropriate behaviour; in fact it was said in written submissions she might have made some matters which were helpful to him.  Caitlyn is a child that the appellant has always lived with, and with  his  wife,  and  was  clearly,  in  Mr  Gill’s  submission,  not  at  risk  from  the appellant.  Mr Gill submitted it would be bizarre to suggest that the appellant would now offend against Caitlyn given the attention to which he is currently subject.

[16]     With reference to these matters, Mr Gill submitted that the learned District

Court Judge:

•gave  little  or  no  weight  to  the  appellant’s  detailed  denial  of  the offending; and

•was wrong to suggest the risk of Caitlyn being offended against by the appellant was one that merited the conditions that have been imposed as regards her personally.

[17]     These bail conditions were therefore unreasonable and unduly restrictive in the circumstances.

For the Police

[18]     Mr Snape, for the Police, said that it could not be concluded the District Court Judge was plainly wrong.  She had all matters before her when she considered the application to vary bail which is now being appealed.  He pointed to paragraph

16 of her decision as being particularly important, as it reflected the various matters that had influenced her in reaching the decision that she did.   Key there were the appellant’s  previous  convictions.    Although  Mr  Snape  acknowledged  they  were some ago, they were of a similar sort to the offending with which he was now charged.

[19]     Importantly,  Mr  Snape  said,  the  District  Court  Judge  noted  that  the environment to which the appellant would return as regards him and Caitlyn would then be similar to the environment in which the alleged offending, for which he was on bail, had occurred.

[20]     As I have said, the question is whether the District Court Judge was plainly wrong in declining to vary the conditions that in effect prevent Mr T   from returning to the modified home where his wife, Caitlyn and others of the family now live.   As submitted to me by Mr Snape, the Judge took account of the following factors:

•     the précis of evidence intended to be given at depositions;

•that Mr T   did have other convictions albeit from 1992 but of sexual intercourse with a girl between 12 and 16;

•that if returned to this address he would be living with a potentially vulnerable young girl in a similar environment to the one in which the alleged offending took place; and finally

•the nature of the charges he faces and the alleged facts surrounding those charges.

[21]     These are all matters relevant to an assessment of the risk of reoffending against  Caitlyn.    With  reference  to  her  assessment  of  the  significance  of  those matters, and whilst I have listened carefully to Mr Gill’s submissions and acknowledged that perhaps not all Judges would have seen the need for these conditions, that in my view does not make them plainly wrong.  Two District Court Judges, perhaps in slightly different circumstances, have now considered these conditions appropriate, a further factor in my conclusion that, notwithstanding the strong submissions that Mr Gill has put to me and which I acknowledge, I am not in a position to conclude that these conditions were plainly wrong and accordingly this

appeal is dismissed.

Clifford J

Solicitors:   Gill & McAsey for the appellant

Luke Cunningham Clere for the respondent