SOLOFA AIONO V NEW ZEALAND POLICE HC AK CRI 2009-092-3238 [2009] NZHC 1250 (14 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                 CRI 2009-092-3238



                                  SOLOFA AIONO



                                           v



                           
 NEW ZEALAND POLICE



Hearing:       8 September 2009

Counsel:       C P Comeskey for Applicant
               J A Kincade for
Respondent

Judgment:      14 September 2009


                       JUDGMENT OF SIMON FRANCE J
                        (Electronic
monitor bail application)



[1]     Mr Aiono is charged with murder. He has a trial date of 8 June 2010. He
was originally bailed,
but was arrested in relation to a bail breach in mid June. There
has been no renewed application until now, when an electronic monitoring
condition
is offered.


[2]     The breach was visiting his partner; this involved breaching both the hours of
his curfew, and a
non-association order ­ she being a key Crown witness. The
reason is said to be to have contact with his son.




SOLOFA AIONO V
NEW ZEALAND POLICE HC AK CRI 2009-092-3238 14 September 2009

Facts


[3]     The evidence, particularly of Mrs Aiono, discloses
that she and her husband
were having some difficulties prior to the events in issue.          Mr Aiono seemed
committed and anxious
to keep the relationship afloat. It seems there were highs,
and lows, and infidelity on Mrs Aiono's part.


[4]     At one point
Mr Aiono travelled to Samoa to attend to matters there. While
he was away Mrs Aiono had a sexual relationship with a mutual friend.
When
Mr Aiono returned, she told him that the friend had forced himself on her. That led
to Mr Aiono to seek the man out; they talked
and then Mr Aiono attacked him.
Essentially he hit and kicked him to death in a brutal assault.


History of bail application


[5]
    Presently before the Court is an application with an approved electronic
monitoring condition. However, the Crown were concerned
about the proximity of
the address to where Mr Aiono was living. Before Allan J the Crown handed up a
map that features both addresses,
and highlighted the proximity. It as not disclosed
to defence counsel. I do not know why.


[6]     The matter was adjourned for
inquiries and came before me on Tuesday,
8 September.    Mr Soondram appeared for the applicant.           He indicated that his
instructions were that Mrs Aiono was in Papakura and was not at the address it was
understood the Court had been provided with. Ms
Reid was appearing for the
Crown.    She indicated that the address given to Allan J was what the Crown
instructions were, but it
had proved difficult to contact Mrs Aiono.


[7]     At today's hearing Ms Reid handed me another map.              It confirmed
that
Mrs Aiono was at this other address, and indicated the distance involved.


[8]     Mr Comeskey objected to the procedure. I
replied that I was unaware why it
initially had been adopted but did not wish to delay matters by reviewing it.
However, I indicated
to Mr Comeskey that the address was roughly in Papakura and

was about 20 kilometres from the proposed bail address for Mr Aiono.
Given the
information Mr Comeskey provided to the Court on Tuesday I assume Mr Aiono is
probably aware of it.


Submissions


[9]
     Mr Comeskey submits that electronic bail best addresses the risk. It will alert
authorities to any breach. Custody does not
stop Mrs Aiono visiting, whereas bail
can have a non-association condition. Mr Aiono had not threatened anyone on the
occasion of
the only breach. There was a considerable time till trial in the middle of
next year. The presumption was in favour of bail and Mr
Aiono should be admitted
to it.


Decision


[10]     I am not satisfied electronic bail addresses the risks that I see existing.
This
assault arose out of the domestic relationship.           Mrs Aiono's actions plainly
contributed to events.      The evidence
suggests Mr Aiono has strong emotions
concerning the relationship.


[11]     In my opinion there are real dangers here as the trial date approaches and the
realities become more stark. Whatever
the outcome of the trial, which can be only
murder or manslaughter, Mr Aiono faces a lengthy term of imprisonment. His
jeopardy is
great; his relationship with his wife and son in inevitably challenged by
that inevitable outcome; his wife must be viewed by him
as a significant cause of all
this happening.


[12]     I note that the breach that occurred is visiting his family against conditions
of
non-association and curfew. As trial nears, I am concerned emotion may take over,
be that emotions of anger or despair. The reality
is that Mr Aiono has savagely
beaten a man to death. If such anger were to grip again, or despair, electronic
monitoring will provide
insufficient protection. He has shown himself capable of
extreme violence and any risk of repetition should not be allowed.

[13]
   The appeal is dismissed.




                                                                 ______________________
        
                                                                  Simon France J

Solicitors:
C P Comeskey, Barrister, Auckland
J
A Kincade, Meredith Connell, PO Box 2213, Shortland Street, Auckland