H v Police HC Napier CRI-2010-441-52 [2010] NZHC 2249 (14 December 2010)

Last Updated: 30 January 2017

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

_{CRI-2010-441-52}

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 14 December 2010

Counsel: J S Jefferson for Appellant

J E Rielly for Respondent

Judgment: 14 December 2010

_{ORAL JUDGMENT OF MACKENZIE J}

[1] This is an appeal against a refusal of bail.

[2] The appellant is charged with causing grievous bodily harm with that intent. That is a charge which he faces with three co-accused. The Crown case briefly stated is that on 29 January 2010 the appellant was part of a group attack on the complainant which involved assaults on the complainant while he was on the ground.

[3] The trial has been set for 31 January 2011. The appellant was earlier declined bail on 11 February 2010 and a subsequent application for electronically monitored

_{bail was also refused on 31 March 2010.}

H V NEW ZEALAND POLICE HC NAP CRI-2010-441-52 14 December 2010

[4] The grounds of the present application, which was made on 4 November, was that there had been a change in circumstances in that two co-accused who had given statements to the police which implicated the appellant in the assault have since recanted and have provided signed letters that the appellant played no role in the assault. That application was considered by Judge Adeane on 8 November. He noted that the appellant had been implicated primarily by a 14 year old independent witness. He noted that that witnesses’ evidence remains unchanged. He noted that the co-accused (who have since admitted, and been dealt with for their part in matters) would give an exculpatory version of events so far as the appellant is concerned.

[5] Dealing with the specific ground that the strength of the Crown case has diminished the Judge noted that that remains as strong as its strongest link and that remains the 14 years old who is not being charged. He attached little significance to the subsequent exculpatory statements of the co-accused.

[6] On this appeal the appellant must demonstrate that the decision of the Judge contains an error in principle or was plainly wrong. Counsel for the respondent submits that the Crown case remains strong in that it depends largely on the evidence of the 14 year old witness whose evidence has not changed and counsel raises concern about the possibility of interference with witnesses which had formed part of the grounds for the original opposition to bail.

[7] I consider that the decision which the Judge reached as to the effect of the new statements on the strength of the Crown case was a justifiable one on the material before him. In any event, an alteration to the strength of the Crown case would have been only one factor in considering whether bail, which had previously been refused, should be granted. I consider that no error of principle is demonstrated. The decision which the Judge reached was one which he was properly able to reach on the material before him.

_{[8] Accordingly the appeal must be dismissed.}

_{“A D MacKenzie J”}

Solicitors: Scott Jefferson, Barrister, Napier for Appellant

Elvidge & Partners, Napier, for Respondent