W v Police HC Napier CRI 2008-441-18

[2008] NZHC 1193

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2008-441-18

W

Appellant

v

POLICE

Respondent

Hearing:         22 July 2008

Counsel:         T M Petherick and F L Greville for Appellant

J E Rielly for Respondent

Judgment:      25 July 2008 at Oral

ORAL JUDGMENT OF MACKENZIE J

[1]      This  is  an  appeal  against  the  refusal  of  bail  in  the  District  Court  on

3 July 2008. The appellant had first appeared in the District Court on 19 June on one count of male assaults female and one count of possession of cannabis.   His application for bail was dealt with on that day by Judge Mackintosh.

[2]      The  circumstances,  as  they  were  alleged  at  that  time,  were  that  the complainant  was  the appellant’s  partner  and  the mother  of  their  three  children. There was before the Judge a victim impact statement which was unsigned but based on interviews with the complainant in which she expressed herself as being terrified

of the appellant and his associates stating that he was a patched member of the

W V POLICE HC NAP CRI 2008-441-18  25 July 2008

mongrel mob.  As to the alleged offence, the grounds of opposing bail set out what were then the alleged circumstances.  These were that the appellant had gone to the complainant’s address and become involved in an argument which escalated to the extent of the appellant punching the victim twice with sufficient force to force the victim’s head backwards to strike the bench that she was sitting next to.  Police were called.

[3]      On that basis Judge Mackintosh said, (although the notes of her decision are not before me they are quoted from the subsequent decision to which I will come in a moment) that she did not believe that the bail conditions that had been proposed would minimise the risk of further offending or of contact with the complainant and potential interference therefore with witnesses.  Bail was refused.

[4]      A  new  application  for  bail  was  made  on  26  June.    In  support  of  that application it was submitted that there was a change of circumstances and in essence two changes are relied upon.  First, it was stated that the complainant had indicated that she had withdrawn her complaint and said that the assault did not happen, and another witness, from whom a statement had been taken, also submitted a brief statement to say that the assault did not happen.  Those alleged changes in position by those witnesses form the first basis of the change in circumstances.  The second was the address to which the appellant sought to be bailed.  A new address from that originally given was proposed.

[5]      That application came before Judge Adeane on 3 July.  He noted the change in position by the complainant and referred to the victim impact statement, which he preferred.  He also noted his understanding that the address proposed was the address of the complainant.   Bail was again refused.   This appeal is against that second decision.

[6]      There are essentially two issues which arise on Mr Petherick’s submissions. The first  is  the question  of  the change in  position  by the  complainant  and  the witness, and the second is the issue of the address.  Mrs Rielley for the Respondent indicates that the police do intend to proceed with the prosecution.  She indicates that the police are aware, from the appellant’s submissions in the bail application, that the

complainant does state that she has left a message with police and sent them a letter to say that the appellant did not assault her. Counsel says that no such letter or message has been received.

[7]      As  to  the  criticisms  which  Mr  Petherick  makes  of  the  victim  impact statement, namely that it is unsigned and appears to have incorrect information in it, Ms Rielley indicates that that was prepared on the basis of information provided by the complainant at the time.  Issue was taken with two points in it in particular.  The first  is  a  statement  that  she  had  only  recently  returned  from  Australia  when apparently she had returned some time ago, and also over the issue of whether the appellant is a patched member of the mongrel mob.

[8]      Dealing with this aspect essentially on a de novo basis, which I think in the circumstances is appropriate, it is quite clear that this is a case where the complaint was initially made and the complainant now seeks apparently to resile from that position.   That is a circumstance which is regrettably all too common and indeed Judge Adeane said that the letter might be considered “laughably predictable if the defendants history of violence to his wife and children and the context of domestic violence were not both so serious”.

[9]      The essential issue under s 8 of the Bail Act is whether there is a real and significant risk that the appellant may interfere with witnesses or evidence, or may offend while on bail.  The appellant has a considerable history of violent offending and offending while on bail.  On that aspect the risk of further offending must be assessed as significant.  The risk of interference with witnesses, particularly in the circumstances where the complainant has already made a change in her statement, must be regarded as a matter of serious concern.

[10]     The second matter which is relied upon in support of the appeal relates to the question of the address to which bail is proposed.  It is submitted that Judge Adeane was under a misapprehension that that was the complainant’s address.  There seems to be some uncertainty about that.   I would place little weight on the question of whether it is the complainant’s address or another address.   The risk of offending

while  on  bail  or  of  interference  with  witnesses  would  seem  to  be  significant whatever the position is with where the complainant is residing.

[11]     So having regard to the considerations in s 8(1) of the Bail Act, I consider that the conclusion that there was a real and significant risk of offending while on bail or of interference with witnesses is an assessment which both Judges clearly made and both were entitled to make.

[12]     The strength of the evidence is a matter which the Court may take into account as is the likely length of time before the matter comes to a hearing.

[13]     In the circumstances, I do not consider that the Judges can be said to have erred in principle in not placing explicit weight on the question of the strength of the evidence and the probability of conviction.  Ms Rielley indicates that the prosecution intends to proceed and I would not disturb the assessment on the basis of the strength of the evidence.  The likely length of time is, as I have indicated, a relevant matter. Apparently this matter is set for a hearing on 6 August which is within a relatively short time.

[14]     In all the circumstances I do not consider that the appellant has demonstrated that the decision is wrong in principle, nor that it is a plainly wrong exercise of discretion, and the appeal will be dismissed.

“A D MacKenzie J”

Solicitors:         Gresson Grayson, Napier for Appellant

Elvidge & Partners, Napier for Respondent