H v Police HC Auckland CRI 2010-404-416 [2010] NZHC 2419 (3 December 2010)

Last Updated: 27 January 2017

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2010-404-416}

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 3 December 2010

Appearances: M Read for the Appellant

A J Pollett for the Respondent

Judgment: 3 December 2010

_{ORAL JUDGMENT OF WHITE J}

Counsel: M Read, 26 Hobson Street, Auckland 1010

Solicitors: Crown Solicitors, PO Box 2213 Shortland Street, Auckland 1140

H V POLICE HC AK CRI 2010-404-416 3 December 2010

[1] This is an appeal against the decision of District Court Judge Andrée Wiltens in the District Court at Manukau on 29 October 2010 declining to grant Mr H bail.

[2] Mr H faces the following charges:

1. Burglary under s 231 of the Crimes Act 1961, which carries a maximum penalty of 10 years imprisonment; and

2. Using a document (x 5) under s 228(b) of the Crimes Act 1961, which carries a maximum penalty of seven years.

[3] Currently there is no hearing date for the charges, but I am advised that there is to be a case management hearing in the District Court at Manukau on 7 December

2010.

[4] The factual background to the charges and the reasons for declining bail are set out in the District Court Judge’s notes:

[3] What the prosecution say is that there was a burglary that involved the taking of somebody’s wallet. A number of cards were taken from it which were used shortly after the event at various stores: Meat World, Super Imports, The Mad Butcher, and a liquor store in Mangere/ Manukau/Manurewa area. Those purchases occurred fairly shortly after the alleged burglary. The prosecution say that all of that spending on the stolen cards was captured in CCTV footage. I have not seen that, and your counsel says it is not clear. I do not know.

[4] Your counsel says that the prosecution case against you is a weak, because although witnesses purport to identify you the photograph of you in the photo montage is indistinct, to say the least, and does not reflect you. So, if you have been identified on the basis of that that would be an unsafe identification. As I have explained to Mr Read, it is not my role today to decide whether the evidence against you is strong or weak, that will happen at a defended hearing should the matter go the distance.

[5] At this point in time I have to evaluate the risk of giving you bail, the risk being heightened because of your five pages of previous convictions, many of them being for similar type offending. There is an obvious risk of further offending by you while on bail. Secondly, there is a risk of your not attending Court when required, and in support of that I notice that there are a number of breaches of Court orders and Court sentences as well as four breaches of Court bail already to your name by way of criminal convictions. I then have to regard to Section 12 of the Bail Act. Because of your previous conduct there is an onus on you to satisfy me that it is appropriate to grant you bail, and you have failed in that regard.

[6] I am not prepared to grant you bail. There is simply too much risk in giving bail to a man with this number of previous convictions for this type of offending. There is just too much of a risk of further offending. I note also that you have apparently made some sort of an admission, which is denied by your counsel, so there will have to be some sorting out of what the evidence actually is against you, but as I say that is not my role today. Today you are remanded in custody through to 9.00 am on 7 December for a case review hearing.

[5] The principal ground of appeal advanced by Mr Read in his written and oral submissions for Mr H is that in [4] of his decision the District Court Judge failed to properly consider the strength of the evidence as required by s 8(2)(b) of the Bail Act 2000. Mr Read says there is a real possibility that the offending was committed by another person. There were several remands in the District Court to enable the Police to provide better quality identification evidence which was not done. Mr Read has provided affidavit evidence from Mr H ’s partner and sister who have deposed that Mr H has never to their knowledge had a moustache, while the person in the Police photographs appears to have one. While accepting that the onus is on Mr H in terms of s 12 of the Bail Act 2000, Mr Read submitted that the failure by the District Court Judge to consider the strength of the evidence of identification means that the appeal should be allowed.

[6] For the Police, Ms Pollett submitted that the District Court Judge correctly considered the application for bail in terms of s 12 of the Bail Act 2000 and correctly evaluated the risks. On the issue of identification, the Police evidence comprises five witnesses who have identified Mr H from a photo board and also CCTV footage from four outlets in Mangere. The Officer in Charge of the case has identified Mr H from the footage in relation to three outlets and there is also an admission by Mr H relied on by the Police.

[7] In reply Mr Read submitted that the photo board shows a person with a moustache and the affidavit evidence which has been produced suggests therefore that it could not be Mr H . The CCTV footage has not yet been provided to the defence and the admission is in dispute. There have been no breaches of bail by Mr H . In terms of s 12 the offences which bring that provision into play occurred in

2000.

[8] There is no dispute that on appeal Mr H must show that the District Court Judge erred in exercising his discretion either by taking into account irrelevant factors, failing to take into account relevant factors or reaching a decision that was plainly wrong.

[9] There is also no dispute that by virtue of s 12(1)(b) of the Bail Act 2000 the onus is on the appellant to satisfy the Court that bail should be granted and that in terms of s 12(5)(b) the appellant must satisfy me on the balance of probabilities that he will not, while on bail, commit burglary or any other serious property offence. It is clear that the District Court Judge applied these provisions of the Bail Act 2000, especially in assessing the risks of further offending and taking into account Mr H ’s criminal record. It is clear that the District Court Judge was satisfied that the onus was not discharged.

[10] On the question of the strength of the evidence relating to identification, I note first that in terms of s 8(2)(b) it is a discretionary factor and does not override the requirements of s 12 of the Act. In view of the existence of Police evidence as to identification, it cannot be said that there is no adequate evidence on the issue or that the state of the evidence requires bail to be granted. As the District Court Judge said, it is not possible to determine the issue at this time. It is an issue that will be addressed at the hearing.

[11] I am therefore not satisfied that the District Court Judge erred in exercising his discretion or in failing to consider properly the question of the strength of the evidence relating to identification.

_{[12] For those reasons the appeal is therefore dismissed.}

D J White J