W v Police HC Auckland CRI 2009-404-254

[2009] NZHC 1219

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-254

W

v

NEW ZEALAND POLICE

Hearing:         8 September 2009

Counsel:         S D Patel for Appellant

R Reed for Respondent

Judgment:      9 September 2009

JUDGMENT OF SIMON FRANCE J (Bail variation appeal)

[1]      This  is  an  appeal  against  the  refusal  of  the  District  Court  to  vary  the conditions of bail.  Mr W   faces what I regard as a very serious allegation of injuring with intent to cause grievous bodily harm.

[2]      Annoyed  by  what  he  regarded  as  the  illegal  removal  of  his  vehicle, Mr W   went to the reception of the towing company where the car had been taken.  There was a discussion with the attendant and eventually Mr W   paid the

$200 but also threatened the attendant.  The allegation is that he then left the office but returned carrying a red plastic petrol container and a solid metal bar.  He grabbed the victim, poured petrol over his head and demanded a lighter from his female

companion.  The victim fled but Mr W   chased him. He hit him over the head

W V NEW ZEALAND POLICE HC AK CRI 2009-404-254  9 September 2009

with the metal bar.  He attempted to hit him again.  He then poured more petrol over the victim’s head and repeatedly demanded a lighter from his female companion. The victim managed to flee the scene and drive off in a truck.

Issue on appeal

[3]      Mr W   has, through redundancy, lost his job.  However, he has a brother living in Australia who has arranged employment for him.  Mr W   applied to the District Court for a variation to his bail to enable him to go to Australia and work. He says he will return at the appropriate times to face his charges.

[4]      Mr Patel submits that the position of a surety will be sufficient to address the risk of him not returning.

[5]      Before the District Court Mr W   had filed an affidavit.  He said that he was denying the allegations, and in particular the circumstances in which it is said that petrol came to be on the complainant.  He says that he is the sole director and shareholder of a company which owns a property with a value of $320,000.  There is a mortgage over that property of $213,000, and accordingly equity of $106,000.  He is prepared to offer that as surety for the grant of bail.  He notes that he also has a joint interest together with two brothers in forestry land in Taipa in the far North.  He has three children who live in Auckland with whom he is close and accordingly he has good reason to return to New Zealand.

[6]      The issue of surety was not before the District Court because it is unable to order that as a condition of bail.  But for that factor I fully agree with the decision of the District Court that the variation would be inappropriate.   In my view there is insufficient incentive for Mr W   to return to New Zealand, and the charges he faces are serious.  They carry a real jeopardy of imprisonment.

[7]      I do not consider the surety offered of a charge against land is sufficient incentive for Mr W   to return to New Zealand.  The land is not owned by him but by a company.   It is already significantly mortgaged.    I consider that it is important in this case that the matter be brought to Court and that accordingly the

Court must be very wary before placing that in jeopardy.  At the hearing Mr W   also indicated a cash surety of $20,000 was available.  At the time the issue of a job in Australia arose, Mr W   raised the issue with the police through counsel, showing it is submitted that the risk of flight is not significant.

[8]      The cash surety improves Mr W  ’s position but the jeopardy he faces is very significant.  Once in Australia there are no controls concerning further travel and  I  am  not  satisfied  that  the  risk  of  not  returning  is  sufficiently  alleviated.

Accordingly, the appeal is dismissed.

Simon France J

Solicitors:

S D Patel, Barrister, P O Box 194, Shortland Street, Auckland, email:  [email protected]

R Reed, Meredith Connell, PO Box 2213, Shortland Street, Auckland email:  rach[email protected].nz