R v Chatha DC Palmerston North CRI-2010-054-3984 [2011] NZDC 502 (1 April 2011)

Last Updated: 3 October 2016

IN THE DISTRICT COURT AT PALMERSTON NORTH

_{CRI-2010-054-003985}

THE QUEEN

v

ARSHAD MAHMOOD CHATHA

Appearances: P L Murray for the Crown

Accused appears in person

Judgment: 1 April 2011

DECISION OF JUDGE G M LYNCH [VARIATION OF BAIL]

[1] The accused Mr Chatha faces charges of male assaults female and attempting to pervert the course of justice. The charges are as a result of court bailiffs going to Mr Chatha’s address in College Street, Palmerston North to execute a distress warrant on 13 October 2010.

[2] The allegation, and I emphasise that is an allegation at this stage, is that both Mr Chatha and his father were obstructive when the bailiffs called to seize a van said to be owned by Mr Chatha. When the tow truck reversed up Mr Chatha’s driveway, it is said Mr Chatha got into another vehicle that was parked in the driveway and reversed it into the tow truck on two occasions. The tow truck driver was forced to reverse out of the driveway.

[3] There was then a confrontation with one of the bailiffs who, it is alleged, Mr Chatha grabbed by the jacket and pushed. This caused the bailiff to fall

R V ARSHAD MAHMOOD CHATHA DC PMN CRI-2010-054-003985 [1 April 2011]

backwards onto the van. When the bailiff told Mr Chatha that he had assaulted her Mr Chatha allegedly said “I don’t care. Get out”. Mr Chatha is then said to have punched the bailiff in the chest area with a closed fist, knocking her backwards and onto the van with the blow knocking the breath out of her.

[4] It is said Mr Chatha then got into the van and drove away from the address at speed causing the tow truck driver to jump out of the way, Mr Chatha driving over the footpath and onto the road without stopping or giving way. That is the broad allegation in relation to the assault. Mr Chatha denies the allegations.

[5] In relation to the charge of attempting to pervert the course of justice, it is alleged that Mr Chatha following the confrontation with the bailiffs, changed the ownership of various vehicles and trailers from his name into his mother’s name. The van which the bailiffs were trying to seize was one of those vehicles. Mr Chatha denies that there was any attempt to pervert the course of justice.

[6] Mr Chatha has been on restrictive bail conditions. The bail conditions included:

“To be and remain at 336A College Street, Palmerston North between the

_{hours of 09:00 pm and 07:00 am.”}

“Not to drive any motor vehicle.”

“To surrender any passport presently held by him on 21/10/2010 to the Registrar of this Court, and not to apply for any passport. The Registrar is directed to advise the Department of Internal Affairs, Passport Division of

_{this condition.”}

_{“Not to apply for travel documents.”}

[7] There being no opposition, I have deleted the curfew and the condition not to drive. This alleged offending has occurred in the day time. In relation to driving convictions Mr Chatha has convictions in 2001 for failing to provide his name and

address on demand and refusing a request for a blood specimen. The restriction on driving is not required in my assessment. Mr Chatha has convictions for dishonesty which I will return to shortly.

[8] Mr Chatha seeks to have his bail varied so that he can leave New Zealand to go to Pakistan to get married. Mr Chatha carefully explained to me the difficulties he has experienced in relation to his intended marriage as a result of being charged with this alleged offending. He has not been able to travel to Pakistan where, he assures me, his intended bride is. Mr Chatha told me that his intended bride is the eldest daughter and that the delay in him travelling to Pakistan to marry her has meant that his intended bride’s sisters cannot themselves be married until she herself has married.

[9] Mr Chatha tells me that he is a “man of standing” locally having sought election to the Office of Mayor of Palmerston North and has stood unsuccessfully for Parliament and that when he gives his word he honours it. Mr Chatha told me he has been in New Zealand since 1992 and amongst other qualifications has a Masters degree in Business Management.

[10] Mr Murray for the Crown indicated that he did not wish to stand in the way of Mr Chatha being able to marry, but had concerns whether the Court could be assured that Mr Chatha would return to New Zealand to face these charges. Mr Murray initially suggested that Mr Chatha be subject to a surety, however s 31(5) of the Bail Act 2000 does not permit that. Mr Murray suggested that either the variation be refused and Mr Chatha exercise his appeal rights or the matter transferred to the High Court to enable the High Court to exercise its inherent jurisdiction to impose a surety. Mr Murray indicated that a surety of approximately

$10,000 would be appropriate in all the circumstances.

[11] In relation to the issue of a surety Mr Chatha confirmed that he would be able to arrange that through the assistance of his parents and friends. However, it was Mr Chatha’s position that a surety was not needed at all because the Court could rely upon his word that he would return to New Zealand to face these charges. In fact Mr Chatha more than once made the point that the charges were to be defended and

were without foundation. Mr Chatha said that his impending marriage was a very crucial matter in his life and that the difficulties regarding the restrictions on him being able to travel were causing not only him stress, but stress on his intended bride and her family.

[12] Conditions of bail are provided for in s 31 of the Bail Act. Subsection (3)

provides:

Whether or not the District Court or Registrar imposes a condition under subsection (2), the Court or Registrar may impose any other condition that the Court or Registrar considers reasonably necessary to ensure that the defendant—

(a) appears in court on the date to which the defendant has been remanded; and

(b) does not interfere with any witness or any evidence against the defendant; and

(c) does not commit any offence while on bail.

[13] The first consideration in this matter is whether the current bail conditions regarding the surrender of Mr Chatha’s passport and that he is not to apply for travel documentation is reasonably necessary to ensure that he appears in Court on the date to which he has been remanded. Those bail conditions do not bear upon an assessment of the risk of interference with witnesses or any risk of committing further offending.

[14] Mr Chatha has a short but troubling history of convictions. While Mr Chatha still argues his innocence in relation to his dishonesty offending, it needs to be observed that Mr Chatha has six convictions for theft which were committed in 2001 and 2001. In July 2005 Mr Chatha received a total sentence of two months imprisonment on that offending. However on 10 December 2008 Mr Chatha received a sentence of two years imprisonment on five charges of using a document for pecuniary advantage and a charge for possessing an implement for forgery.

[15] Mr Chatha’s criminal history shows that in relation to each of his dishonesty

convictions there was an appeal, however the outcome was not changed.

[16] While Mr Chatha contends he is an honest person and complains that he is a “victim of the conspiracy of the Labour Party and their agents and the police”, the fact remains that these dishonesty convictions stand.

[17] Mr Chatha does not have any convictions for failing to answer bail or any convictions for failing to comply with orders of the Court. However where an accused is facing serious charges, as he does, and is seeking an indulgence of the Court to leave New Zealand, there must be some assurance that he will in fact return. Having return tickets would not in my assessment be enough. Any surety would have to be significant enough to give the Court confidence that the accused would not put that at risk by electing for one reason or another not to return.

[18] As I observed earlier the District Court does not have jurisdiction to require a surety as a condition of bail. MacKenzie J in Harding v Police CRI-2008-442-4, HC Nelson 19 February 2008 discussed the question of jurisdiction and observed that it seemed strange that the power to acquire a surety should be dependent on the inherent jurisdiction of the Court, rather than as an expressed provision in the Bail Act itself. (See para [2]). That comment was made because a surety can be imposed as a condition of police bail, but not when the matter is in the District Court.

[19] While Mr Chatha made an impassioned plea that he could be relied upon to return to New Zealand without the need for a surety, on reviewing the matter I am left with a real sense of unease as to whether Mr Chatha would return unless there was some incentive to do so. In my assessment if I permitted Mr Chatha to leave New Zealand without a significant incentive to return, there is a risk he might elect not to return. Mr Chatha told me he does not own property in New Zealand and has no assets of any great value. While Mr Chatha’s parents are living here in New Zealand I was not told whether they owned property and there is clearly nothing preventing them from leaving New Zealand should they wish. Mr Chatha has some business interests, but the one that he discussed with me appears to be internet based and clearly portable. It was not a business of substance from the material I was shown.

Conclusion

[20] I would not allow Mr Chatha to leave New Zealand unless a significant surety was imposed that would allay my concern that Mr Chatha might elect for one reason or another not to return. I cannot impose such a surety.

[21] Accordingly the application to vary the bail conditions by removing the conditions relating to Mr Chatha’s passport and not to apply for travel documentation is refused. Mr Chatha will need to consider his rights of appeal from this decision.

G M Lynch

District Court Judge.

Solicitors: