Wratt v Police HC Napier CRI-2007-441-29

[2007] NZHC 1968

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2007-441-29

DAVID WRATT

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 August 2007

Appearances: E Forster for Appellant

C Walker for Police

Judgment:      3 August 2007

ORAL JUDGMENT OF CLIFFORD J

[1]      This is an appeal against a decision by Judge Rea in the District Court here at Napier declining Mr Wratt bail after Mr Wratt was charged with wilfully obstructing the course of justice.

[2]      That charge arose following events on 31 May, on which day he appeared and was convicted on a charge of assaulting a female.

[3]      It is alleged that on that day he sent two text messages to that female of an abusive nature, clearly designed to prevent her from giving evidence.

WRATT V NEW ZEALAND POLICE HC NAP CRI-2007-441-29  3 August 2007

[4]      The police recovered from Mr Wratt a cell phone with the number consistent with the messages sent to the female in question.

[5]      Mr Wratt has recently pleaded guilty to a number of other charges including importing  a  restricted  weapon  (a  taser),  five  forgery  charges  involving  false passports, and one charge of using a document and EFTPOS card where the amount in issue is $20,000, subject to a question as to possible reparation that might have been or about to be paid.  He is to be sentenced for those charges in the near future.

[6]      As noted, he was also found guilty to the male assaults female charge, has a number of other outstanding charges which are currently adjourned until the 12th of October, and faces depositions on the attempt to pervert the course of justice charge today week, which is Friday the 10th of August.

[7]      Time to trial is acknowledged not to be an issue.

[8]      During the period when Mr Wratt was on bail for the charges to which he has now pleaded guilty, and for which he continues to be on bail, he was recorded as having breached a reporting condition four times, on the third occasion receiving a final warning.

[9]      In declining bail, Judge Rea referred particularly to the risk of failure to appear, by reference to the volume and nature of the offences with which Mr Wratt was charged, the strong evidence of dabbling in false passports, as the Judge put it and his ability to move countries.  Judge Rea also referred to the other offending and to the breach of bail conditions.

Approach on appeal

[10]     As an appeal against Judge Rea’s decision where, exercising a discretion, he declined to grant Mr Wratt bail, it is well settled that a Judge of this Court should only interfere on appeal if satisfied either that the District Court Judge erred in law, or failed to take into  account relevant  considerations, or gave undue account  to irrelevant considerations, or was plainly wrong.

Submissions for Prisoner

[11]     This morning Mr Forster said that it was the failure of the District Court Judge to explicitly enunciate a test relevant to the statutory provisions set out in the Bail Act that was at the heart of the appeal, whilst he quite sensibly acknowledged that a number of the factual grounds referred to by the Judge did reflect relevant considerations.

[12]     He accepted that if there had been a failure to enunciate a test – and that was in and of itself an error – then in reconsidering the matters there was at least the possibility that another Court would by reference to the factual material come to the same view as the District Court Judge.

[13]     Mr Forster then commented on a number of the relevant factual matters.  As regards risk of failure to appear he accepted that it may be factually indicated, but noted that there was no  previous history in that  regard.   As regards the risk of interference with witnesses, he accepted the charge that the appellant now faced but again queried whether there was any propensity to that type of behaviour.  He noted that the appellant was defending that charge and intended to put the messages sent – or which would appear to have been sent – in a different light.

[14]     As regards the risk of offending on bail and the breaches of bail, there was at least a suggestion he said that the breaches of bail had an uncertain status as they would not appear to have been formally recorded in the way the statute provided.

Submissions for Crown

[15]     For the Crown, Mr Walker’s submission was that it was clear that the District Court Judge was considering bail under s 8 as regards the alleged offence of attempting to pervert the course of justice.   Whilst the Judge may not have gone through and given a label in his decision to the relevant factors by reference to which he made his decision, it was nevertheless clear that he had considered each of the mandatory factors, namely risk of failure to appear, risk of interfering with witnesses and in this case the overlapping issue of offending whilst on bail.   And he also

referred – in terms of the discretionary factor – to the large number of offences in respect of which the appellant was now awaiting sentence.

Discussion

[16]     In terms of the central ground of Mr  Forster’s appeal –  a  failure of the District  Court  Judge to  enunciate  a test  – I  do  not think  given the  decision as recorded that that ground can be made out.

[17]     Whilst, as acknowledged by Mr Walker, Judge Rea may not have labelled his decision by reference to relevant criteria, it is clear in my view that he had in mind the criteria in s 8.   He referred particularly to the risk of failure to appear –the s 8(1)(a) matter.   He also referred to breaches of bail – particularly the failure to report – and again, although not explicitly referred to by the Judge, there is the feature that the circumstances which gave rise to the charge occurred in the Court precincts pending the hearing of the male assaults female charge on which Mr Wratt was found guilty.

[18]     That alleged offending, in respect of which the evidence seems reasonably strong, therefore not only occurred whilst Mr Wratt was on bail but also whilst he was virtually in the conduct of Court hearings.  That has to show a clear risk, both in terms of propensity to interfere with witnesses and of willingness to offend whilst on bail.

[19]     In my view therefore I am not persuaded that the District Court Judge erred in any relevant way.

[20]     Furthermore,  and  as perhaps acknowledged  as being  a  possibility by  Mr Forster, even if I had found that the Judge’s failure to explicitly refer to relevant factors in the Bail Act was sufficient to give rise to an error, in reconsidering the matter de novo and by reference to the  factors I  have  identified,  I  would  have reached the same decision.

[21]     This appeal is therefore dismissed.

“Clifford J”

Solicitors:          E Forster, P O Box 838, Hastings for Appellant

Crown Solicitor’s Office, Napier for Crown