W v Police HC Christchurch CRI 2009-409-143 [2009] NZHC 997 (29 September 2009)

Last Updated: 18 January 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

_{CRI 2009-409-000143}

W

Appellant

v

POLICE

Respondent

Hearing: 29 September 2009

Counsel: PBH Hall and T K Stevens for Appellant

P J Shamy for Respondent

Judgment: 29 September 2009

_{JUDGMENT OF FOGARTY J}

[1] This is an appeal against a refusal of the District Court, Judge B P Callaghan, on 23 July, to vary Ms W ’s bail to enable her to return to her home in Little Wanganui. I have had two hearings of this appeal now. This is the second hearing.

[2] This is a very difficult problem for the Court to deal with. On the face of it Ms W has a very strong case for being able to be bailed to her home in Little Wanganui. It is a house that she owns, on which she is paying a mortgage. Her two children reside there, one aged 14 and one aged four. The 14 year old is settled at

_{school. The four year old obviously needs her continued presence. A former}

W V POLICE HC CHCH CRI 2009-409-000143 29 September 2009

partner, the father of one of those children, has returned to care for the children, but this is difficult for him to do in the absence of their mother.

[3] The problem in this case is that there is a significant group of persons in the community who do not want Ms W to return to Little Wanganui, and, I apprehend, do not want her to return no matter what happens to the police prosecution. Ms W is, of course, entitled to the presumption of innocence and the policy of the Bail Act 2000 is to give effect to that presumption so that there has to be just cause for continued detention. Certainly bailing Ms W but on terms which do not allow her to return home is, although not technically detention, a significant restraint on her normal citizen’s right to live where she wants.

[4] It might be possible to frame this case as some risk that she might interfere with witnesses and so on. I do not think that is the issue. The real issue is that Little Wanganui is a small settlement. I have been told the population is about 650 people. Feelings are running high. Ms W is charged with manslaughter. On the police summary of facts it would appear the police case is that she went into the bar of the Little Wanganui Hotel which is across the road from her house to remonstrate with the publican, David James White. It is alleged that she hit him twice. He fell down and died. There is going to be a trial issue as to whether or not his death was as a result of the blows. It is certainly an open question at this stage as to whether or not she will be found guilty of manslaughter. However, out of that incident very strong feelings are running. I do not think it would help matters to identify the persons who are involved in that. I have received, unusually, a large number of letters. I am satisfied that that is a small but significant group. It is in that context that the police are opposing the variation of the bail terms.

[5] I have received this morning a supplementary memorandum submission from the Crown. Mr Shamy reports that he has discussed the matter with a senior police officer from the Greymouth police. The Greymouth police are essentially concerned that were Ms W to be allowed to go back to Little Wanganui they would have real issues about her continued safety and are not in any position to provide any effective protection should matters get out of hand due to the distances involved and

the isolation of the community. They suggest that she should reside in Westport if she wants to get closer to her children.

[6] Ms W is prepared to take the risk on her safety. Essentially through her counsel, Mr Hall, she argues that there is only a small element within the town who are opposing her return. She would not stay in the town but stay on the rural outskirts in Blue Duck Valley Road; that she would not shop in the town; that she would report to the police at Westport.

[7] My concern is that although she is prepared to take that risk one of the basic functions of the law is to maintain peace within communities and that matters could get out of hand both resulting in harm to her and/or to other people involved. It is difficult for me sitting here on the East Coast to judge the situation. I am totally reliant on the assessment of the position by the local police.

[8] In these circumstances I think that the matters that I have been discussing fall to be classified as special matters that are relevant in the particular circumstances which is a criterion I can take into account under s 8(2)(h).

[9] Accordingly, with considerable reluctance I have decided in these very special circumstances, for the time being in any event, that this appeal should be dismissed. This decision is made in the special circumstances. As Judge Callaghan has observed, sometimes in these sort of cases tempers will cool off and other arrangements may then be able to be made. But at this stage I am essentially in agreement with Judge Callaghan’s judgment and accordingly far from convinced that there is any error in his analysis. On that basis the appeal is dismissed.

Solicitors:

PBH Hall, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent