T v Police HC Wellington Cri-2009-435-6

[2009] NZHC 988

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-435-000006

T

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         29 September 2009

Counsel:         P Broad for appellant

J M Webber for respondent

Judgment:      29 September 2009

ORAL JUDGMENT OF DOBSON J

[1]      This is an appeal against a refusal by the District Court at Masterton to grant bail.  Mr T   pleaded guilty to a first male assaults female charge in April 2009. Sentencing was deferred.  Whilst on bail there was a series of further incidents and Mr T   presently faces seven further charges, including three of male assaults female, all involving the same complainant, Ms Rutene, arising out of incidents on the evening of 17/18 August 2009 and the evening of 6 September 2009.

[2]      Bail was declined on the basis of the Police summary of facts as to the further charges.  That suggested grounds for real concern at any on-going contact between

Mr T   and Ms Rutene.

T V NEW ZEALAND POLICE HC WN CRI-2009-435-000006  29 September 2009

[3]      Mr Broad has sought leave to adduce unsworn statements from two witnesses to the events on 6 September 2009 in Wellington, and has also filed an affirmation from  Mr T    himself.    Those  three  statements  consistently  give  a  version significantly different from the nature of the conduct suggested by the summary of facts.

[4]      Mr Webber concedes that these matters should be taken into account, and that they  introduce  sufficient  changes  for  bail  to  be  considered  afresh,  rather  than Mr T    having  to  discharge  the  onus  usually  arising  on  a  bail  appeal  of establishing that the original decision was wrong in principle.

[5]      In terms of considerations for bail, there appears to be no risk of Mr T   not appearing when the charges are to be determined.   In that regard, Mr Broad is hopeful that a number of the charges will be either scaled down or leave sought to withdraw them.   Mr Webber confirms, in particular in relation to the charge of assault with intent to injure, that leave will be sought to withdraw that charge.

[6]      There is no discrete risk of Mr T   interfering with any witnesses to these events, apart perhaps from Ms Rutene.  He urges personally that he does not wish to have any contact with her and the separation between them ought to be capable of being  policed  easily.    Mr T    lives  in  Wellington  and  Ms Rutene  lives  in Masterton.  Mr T   informs me this morning that their one year old child, Jayden, has more recently been removed from the custody of Ms Rutene’s parents, and that there are on-going Family Court proceedings in relation to matters including the care and control of Jayden.

[7]      I have emphasised to Mr T   this morning that if he is granted bail on appropriate conditions, those conditions are to be complied with absolutely and in all circumstances.  Any contact by means of telephone, texting or face to face contact is completely forbidden and bail will be withdrawn if there is any suggestion of that occurring.

[8]      Mr T    has  residential  accommodation  and  a  job  in  Wellington.    I

accordingly grant bail on the following conditions:

a)        He is bailed to appear in the Masterton District Court on 13 October

2009.  With the exception of the matters traversed below, he is not to visit the Wairarapa in any circumstances other than on 13 October

2009.   On that occasion he is to go directly either to the Masterton

District Court or to the offices of his counsel, Mr Broad.

b)        He is to reside at 41 Nassau Avenue, Grenada North, Wellington. c)  He is not to consume alcohol or non-prescription drugs.

d)       There is to be no association between Mr T   and Ms Rutene.

Even if sought by her, he is to avoid contact.

[9]      The one exception I recognise is the prospective need for Mr T   to attend the Masterton Family Court on 1 October 2009 when I understand there is to be a first call of Family Court proceedings in relation to Jayden.   Mr Broad is to be instructed  in  relation  to  that  matter  and  if  his  judgement  is  that  Mr T  ’s attendance on 1 October 2009 is not necessary, then he is not to go.   If, however, there is a valid reason for him to attend on 1 October 2009, again he is to go directly either to the Family Court or to Mr Broad’s office.  He is not, in any circumstances, to have contact with Ms Rutene other than within the confines of the Family Court if they both have to be there at the same time.

Dobson J

Solicitors:

Luke Cunningham & Clere, Wellington for respondent