U v Police HC Wellington CRI 2007-485-27
[2007] NZHC 341
•19 April 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2007-485-27
BETWEEN U
Appellant
AND NEW ZEALAND POLICE Respondent
Hearing: 18 April 2007
Appearances: P H Mitchell for appellant
J Murdoch for respondent
Judgment: 19 April 2007 at 4:00 p.m.
JUDGMENT OF MacKENZIE J
This judgment was delivered by Justice MacKenzie on 19 April 2007 at 4:00 p.m. pursuant to r 540(4) of the High Court Rules 1985.
Solicitors:
Mr P H Mitchell, Solicitor, PO Box 33-330, Wellington (Fax: 04-587 0067)
Ms J Murdoch, Luke Cunningham & Clere, Office of the Crown Solicitor, PO Box 10-357,
Wellington (Fax: 04-471 2065)
U V NZ POLICE HC WN CRI 2007-485-27 19 April 2007
[1] This is an appeal against a refusal of bail in the District Court on 13 March
2007.
[2] The appellant faces one charge of injuring with intent to injure, which has been laid indictable. The complainant is his wife.
[3] The application was the subject of a careful and comprehensive oral judgment by Judge Kelly. Counsel for the appellant makes a number of criticisms of that judgment, which may be summarised under the following headings:
a) Opposition to bail form;
b) Insufficient opportunity to make submissions;
c) Previous successful completion of bail;
d) Reliance on victim impact statement.
Opposition to bail form
[4] Bail was strongly opposed by Police, and the opposition to bail form reflected that position. Counsel for the appellant submits that the Judge placed too much weight on the information contained in it, appeared to accept assertions contained in it without the necessary critical inquiry as to the veracity and motivation behind the allegations. He submits that she should have treated the opposition to bail form with considerable reserve as it contained a number of factual inaccuracies. He expresses concern at what he described as ‘serious factual errors’ in the information contained in the form.
[5] The weight to be attached to the various matters raised in the opposition to bail form were a matter for the Judge, and it is not for this Court to substitute its own assessment of those matters. As far as the accuracy of the information contained in it is concerned, complaint is made in particular of two matters:
a) a statement that the appellant had smashed a glass picture into the face of the appellant’s wife, and reliance on that as an aggravating factor in the assault; and
b) a statement in the summary of facts that Police on arrival had found the defendant in his vehicle at the front of the address was presented in the opposition to bail form as the defendant trying to leave in a vehicle.
[6] It is a matter of concern that the summary of facts in the opposition to bail form was expressed more strongly than in the summary of facts which was also presented, and in more emotive terms. In relation to the picture incident, the description in the opposition to bail form was clearly inconsistent with the summary of facts, and in relation to where the appellant was found, an inference which was not justified by the summary of facts was drawn. It is necessary to emphasise that care needs to be taken in the way in which the facts are presented to Judges on bail applications, since Judges are necessarily reliant upon that material in their assessment of the circumstances. Having said that, the question on this appeal must be whether there is a risk that the Judge’s decision was influenced by inaccurate information. In my view, there is not. I consider that it is clear from the Judge’s decision that neither of those alleged factual inaccuracies were material. In recording the circumstances, the Judge specifically referred to the version of the photo-frame incident in the statement of facts, namely that he punched the wall causing a photo-frame to fall and break on the floor. She did not mention his trying to leave in a vehicle, simply noted that when Police arrived they found him at the front of the address.
[7] Another aspect of the opposition to bail form which is criticised is that it referred to Police having been called to 21 incidents at the defendant’s address since
1995. Counsel submits that the Judge placed undue weight on that and submitted that there were no details as to why Police were called, who called them, or even whether the appellant was living at the address at the time. He submitted that giving weight to such bald statistics was unfair to the appellant. In response, counsel for the
respondent submits that the Judge was entitled to take this information into account, and to view the situation as one where there had been repeated domestic violence.
[8] I consider that the Judge was entitled to view the matter seriously. It could not be expected that a detailed investigation should be undertaken by her into matters where no charges were laid. That there had been a number of previous incidents was, however, a matter with which the Judge was entitled to take into account. Judge Kelly mentioned this in the context of a risk of further offending while on bail. Given that this was a case of alleged domestic violence, the risk of further incidents involving the appellant and the complainant was a matter requiring serious consideration, and in my view the Judge was right to regard the fact that there had been many previous domestic incidents as an important consideration, despite not having the information necessary to assess the detail of those incidents.
Insufficiency of time to make submissions
[9] Counsel for the appellant submits that the Judge failed to provide adequate time for counsel to address various points raised in the opposition to bail form. He acknowledges that the matter was called at 4:30 p.m. at the end of a very busy day when the Judge had several other opposed applications to hear. However, he submits that the appellant should not be penalised by time constraints on the Court and that had more time been allowed a different outcome may have ensued.
[10] The proposition that the appellant should not be penalised by time constraints on the Court is undoubtedly correct. However, it does not follow that unlimited time must be made available. The pressures on a Judge dealing with a busy Court necessarily require the Judge to manage the business of the court efficiently, and the Judge can in doing so focus attention on those matters where counsel can best assist the Judge, and can encourage counsel to be succinct. The issue here is whether there is any material which suggests that the Judge may have exceeded the proper bounds of encouraging efficiency, or that her consideration may have been affected by undue time pressures. In my view, there is not. I do not consider that there is any indication that any undue constraint was placed on counsel. The judgment is, as I have noted, a careful and comprehensive one. The Judge dealt with the material in a
way which does not give rise to any concern that her assessment of the merits of the bail application may have suffered from insufficient time for consideration. Mr Mitchell acknowledged that all of the points which he would have wished to make have been able to be made on this appeal. I have not been persuaded that any of the matters which he has raised would, if raised before the Judge, have been likely to lead her to a different conclusion.
[11] For the reasons I have given, I do not consider that there is anything in the way in which the Judge approached the matter, or the reliance which she placed on the opposition to bail form, which suggest that the Judge has fallen into error as a result of some misunderstanding which could have been corrected by further submissions.
Success of previous bail arrangements
[12] The arrangement proposed in respect of bail were that the appellant would reside in Nelson with his brother and sister-in-law, where he had previously been bailed in 2004-2005. Counsel submits that the Judge appeared to give no weight to the fact that that earlier period on bail, at the same address, had been completed without incident.
[13] The weight, if any, to be attached to that was a matter for the Judge. She considered that there was a risk of interference with witnesses even if he should be bailed to Nelson. That was an assessment to which she was entitled to make and is not one with which this Court should interfere. The Judge was also entitled to take into account, as she did, other matters in assessing whether bail on this occasion would appropriately address the risks.
Victim impact statement
[14] Mr Mitchell submits that the Judge took into account the views of the victim, contained in a victim impact statement, and that those should have been disclosed to counsel if they were to be given weight.
[15] The access of an offender to a victim impact statement is subject to legislative restrictions, in ss 23, 24, and 25 of the Victim’s Rights Act 2002 in particular. Except where s 26 of that Act applies, there is no legislative restriction on a Judge taking account of matters in a victim impact report. It is for the Judge to assess the extent to which the necessarily untested comments in a victim impact statement are taken into account, in complying with the statutory requirement to take those views into account. This is a case where the Judge was required to take into account the need to protect the victim, as well as the requirement to take into account the views of the victim under s 8(3). There is nothing in the material relied upon by the Judge which suggests that her reliance upon that statement was inappropriate, or that she should have given an opportunity to comment on that statement.
[16] For the foregoing reasons, I am satisfied that no error in principle on the part of the Judge has been demonstrated and that the exercise of her discretion in relation to bail is not shown to have been wrongly exercised.
[17] The appeal is accordingly dismissed.
MacKenzie J
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