H v Police HC Whangarei CRI-2010-488-36 [2010] NZHC 1387 (12 August 2010)

Last Updated: 19 January 2017

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

_{CRI-2010-488-000036}

BETWEEN H

Appellant

AND POLICE Respondent

Hearing: 12 August 2010

Counsel: A B Fairley for Appellant

Nicole Dore for Respondent

Judgment: 12 August 2010

_{[ORAL] JUDGMENT OF HUGH WILLIAMS J.}

Appeal against District Court Judge’s refusal to grant EM bail is dismissed.

[1] In its terms, this is an appeal lodged on 19 July 2010 against a decision delivered that day by Judge Duncan Harvey refusing Mr H ’s e-bail application. However, that is a disarmingly simple description of what has become a difficult question of bail.

[2] It is important to recount what it was that impelled the District Court Judge to refuse Mr H ’s e-bail application.

[3] In the first place, the Judge recorded that on 6 July 2009, immediately after the actions which have given rise to the charges Mr H faces, Judge Harvey

_{refused Mr H bail because of his past violent offending, a problem the Judge}

H V POLICE HC WHA CRI-2010-488-000036 12 August 2010

saw with the appellant and alcohol, and the concern the Judge expressed that if he bailed Mr H to the proposed address – that occupied by his parents – and Mr H drank alcohol, his parents would not be able to control him and accordingly the complainant in the charges would not be safe. Mr H faces charges of threatening to kill, male assaults female (two charges), kidnapping, assault on a child, and assault with intent to injure – all in relation to a complainant “S” and the son she has had with the appellant.

[4] Judge Harvey noted on 19 July, however, that Mr H had been granted bail by Judge de Ridder on 24 August 2009 but, in a decision where he described the e-bail application as “very finely balanced”, the Judge granted e-bail because of the time which was then expected to elapse before Mr H ’s trial could be heard. There was a firm warning on that occasion that any breach of the conditions of bail would almost certainly see Mr H back in custody.

[5] On 13 November 2009 Mr H was arrested for breaching the e-bail conditions by possessing and consuming alcohol which Judge Harvey, on 19 July

2010, noted that was one of the concerns that had led him initially to refuse bail.

[6] Whether or not Mr H was in breach on 13 November 2009 was the subject of a defended hearing over a fairly lengthy period. Judge McDonald found the charge proved and on 26 November 2009 the same Judge refused Mr H ’s application for EM bail. In doing so, Judge McDonald said that it would be “rare for someone who has been found except in exceptional circumstances to have breached their e-bail to be granted bail again”. Mr H was accordingly remanded in custody but, through error on the part of the authorities, was erroneously released from custody on 7 December 2009 and remained at large until 15 January 2010. Mr Fairley, both in previous hearing and in this one, points to the fact that during that period when Mr H was at large he committed no offences, contrary to the concerns expressed by the District Court Judges.

[7] An appeal against Judge McDonald’s refusal of EM bail first came before Keane J on 4 February 2010. The Judge did not deal with the matter on that day because further information was required. That particularly related to the safety of

the complainant and the child, and checks needed to be made concerning the proposed EM bail address because Mr H ’s parents were apparently in Australia at the time.

[8] The matter came back before White J on 16 April 2010 when the appellant’s appeal against Judge McDonald’s refusal of EM bail was dismissed. Although White J’s remarks are not available, it seems likely they were influenced by the fact that Mr H ’s trial was then set down for 10 June 2010. Unfortunately the trial did not proceed on that date as a preceding trial ran over, and Mr H ’s fixture therefore had to be vacated and he is not now for trial until 1 November 2010.

[9] The position now is that Mr Fairley makes the point that Mr H has been in custody, on and off, for a lengthy period since the actions giving rise to the charges he faces and he now faces another nearly three months in custody before his trial. Mr Fairley submits that in those circumstances, even if the appellant were to be convicted, the sentence to be imposed may very well not be as great as the period spent on remand.

[10] The Police continue to oppose EM bail for Mr H , even though it is clear that the premises themselves are suitable for electronic monitoring and Mr H ’s parents are now prepared to have him live there on a 24 hour curfew.

[11] There is a preliminary problem to any bail in that regard, which is that another partner of Mr H ’s - a Ms “R” - and the four children of their association are currently living at the address, 1 Raumanga Street. Mr Fairley says they can shift out at short notice to Mr H ’s grandparents address, a few doors down the road.

[12] The Police concerns remain that there is the likelihood of Mr H interfering with witnesses in terms of s 8(1)(b) of the Bail Act, and that Mr H has a history of offending whilst on bail, including a failing to comply with bail conditions.

[13] The accuracy of the former of those concerns cannot be properly gauged. There is material on the file in the form of a letter from Ms S saying she wishes to withdraw all the informations issued against Mr H . That letter is signed in front of a JP but, unsurprisingly, the Police are dubious as to whether that is a genuine withdrawal uninfluenced by the appellant. It seems likely that the prosecutions will proceed, even if Ms S recants, because there is other evidence available on which a conviction might be founded but nonetheless if Ms S remains of what seems to be her present attitude, her evidence may only be given as a hostile witness.

[14] Putting that to one side, therefore, the question is really whether, in terms of s 8(1)(c) there is a risk the appellant may offend whilst on bail. Judge Harvey plainly thought that a consideration which outweighed the thrust towards allowing accused persons to be at liberty. And he also regarded offending whilst on bail in the past as a relevant factor, as indeed it is under s 8(2).

[15] If this were simply a matter of saying that EM bail should now be granted solely because of the time which will elapse until Mr H ’s trial, then the appeal would appear to be straightforward. However, as that review of the background has shown, Mr H ’s circumstances have now been considered on a number of occasions in relation to bail and all the Judges who have dealt with this matter have either dismissed the bail applications or expressed considerable concerns about granting them because of the risk of Mr H breaching s 8 in various ways, concerns which have, or may have, been borne out.

[16] As mentioned at the outset, this is an appeal against Judge Harvey’s decision on 19 July 2010 refusing bail. The Judge carefully weighed the relevant factors. He took into account Mr H ’s previous history including the Judge’s own views as to the inadvisability of bail – views which seem to have been vindicated, at least in part. Were this a de novo application for bail, as mentioned, without concern about the background, EM bail may well be granted. But it is not. It is an appeal. The appellant must show the Judge’s views were wrong. The Judge gave careful consideration to the relevant factors. He reached the view that EM bail should not be

granted. It has not been demonstrated that the Judge was wrong in that regard and accordingly the appeal is dismissed.

.................................................................

HUGH WILLIAMS J.

Solicitors:

Crown Solicitor, P O Box 146 Whangarei

_Email: [e-mail]

Copy for:

Thomson Wilson (Arthur Fairley) P O Box 1042 Whangarei 0140

_Email: [e-mail]

Judge Duncan Harvey, District Court, Whangarei

Judge J McDonald, District Court Whangarei

Criminal Registry, High Court, Whangarei

Email: [e-mail]