W v Police HC Wellington CRI 2008-483-14

[2008] NZHC 1004

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2008-483-14

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 July 2008

Counsel:         D Goodlet for Appellant

C Patterson for Respondent

Judgment:      1 July 2008 at 2.00 p.m.

JUDGMENT OF SIMON FRANCE J

[1]      Mr W   is charged with Assault with Intent to Injure.

[2]      The assault relates to an attack on a man by the name of McMurtrie.  At the time of the assault Mr McMurtrie was attending the Wanganui District Court for a depositions hearing.  The depositions hearing concerned charges that Mr McMurtrie was facing in relation to an assault on the sister of Mr W  ’s partner.

[3]      Moving forward to the events that are the subject of this charge, the summary of facts records that Mr W   and an associate arrived at the Court approximately

3  to  4  minutes  ahead  of  Mr McMurtrie.    The  allegation  is  that  upon  seeing

W V NEW ZEALAND POLICE HC WN CRI 2008-483-14 1 July 2008

Mr McMurtrie, and it is said by Mr W   after Mr McMurtrie acted in a way to deliberately inflame him, Mr W   and his companion launched themselves at Mr McMurtrie, in full view of the public.  Mr W   and Mr McMurtrie crashed through a glass screen or door, and continued fighting until stopped by the Police.

[4]      In submissions to this Court, counsel for Mr W   says that the summary of facts is generally accepted but for the fact there is dispute as to the extent of the assault,  and  Mr McMurtrie’s  intentions  in  relation  to  it.  The  summary  of  facts records that Mr W   is a senior member of the Wanganui Mongrel Mob, and the person he was with is the “president” of that group.  Ms Goodlet advised that this was not, however, a gang incident.

[5]      When Mr W   appeared on his bail application, the District Court Judge noted the context of an assault in a very public setting by a gang member.  It was recorded that Ms Goodlet had said that the background to the matter was that:

“a person well known to you [Mr W  ] had been violently attacked by Mr McMurtrie and that while you accepted that you initiated this particular incident, there were circumstances which led your “blood to boil over” so as to speak.”

[6]      The  Judge  considered  that  the  particular  circumstances  of  the  conduct, namely that it took place in the public areas of the Courthouse, was a matter to be taken into account under section 8(2) of the Bail Act 2000.  The Judge anticipated that the matter would not take a long time to sort out and that in the interim bail ought to be refused given that special dimension.

Submissions on Appeal

[7]      It is said that the District Court Judge did not have sufficient regard to the bail address that was offered.   It is out of Wanganui up the “Wanganui River Road in Ranana”.  The location of the bail address meant that there would not be a real and significant risk that Mr W   would offend whilst on bail.

[8]      It is said that the Judge elevated the special considerations – namely the

Courthouse setting, the fact that it was Wanganui and the fact that the accused was a

gang  member  -  to  a  section 8(1)  factor  when  the  circumstances  of  the  actual offending do not suggest that there is a risk of re-offending.  Ms Goodlet noted, and the District Court Judge did also, that the Police opposition to bail form expressly focussed on this aspect.  In the Judgment the Judge had observed:

“[2]      The Police oppose you being granted bail, the main reason being that the circumstances where the offence happened are such that you ought not to be granted bail.”

[9]      For the police, Ms Patterson submitted there was a clear risk of Mr W   acting again to offend, given his willingness to assault in the circumstances that this assault took place.  In response to a point raised by the applicant, she submitted that time served is not presently an issue requiring release from an otherwise appropriate custodial remand.  She noted that a change of circumstances application can be made if, for example, the accused were to elect jury trial.

Decision

[10]     The actions of Mr W   reflect either or both of a total inability to control himself in relation to the victim, and a total indifference to the circumstances in which he came into contact with the victim.  There is obviously no regard at all for the concerns of the community, and a willingness on the part of this man to act as he chooses when and where it suits.

[11]     Given that inability to control himself, and lack of concern for anyone else who might be thereby be involved, and given the general concerns that have arisen in the Wanganui area over recent years with gang conduct, I consider that there is very little basis on which the District Court Judge could have granted bail.  It accordingly follows that I am far from convinced that there is any error on the part of the Judge.

[12]     The appeal is declined.   I confirm that if circumstances change so that the remand becomes considerably protracted, an application may be made to the District

Court.

Simon France J

Solicitors:

D Goodlet for Appellant

C Patterson for Respondent