E v Police HC Palmerston North CRI 2010-454-18 [2010] NZHC 764 (26 May 2010)

Last Updated: 13 January 2017

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

_{CRI 2010-454-18}

E

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 26 May 2010

(Heard at Wellington)

Counsel: P V Paino for Appellant

S Johnston for Respondent

Judgment: 26 May 2010

_{JUDGMENT OF SIMON FRANCE J}

[1] Mr E appeals the refusal of the District Court to grant him bail.

Facts

[2] The history of relevant events begins with a Court appearance on

3 February 2010 for a charge of breaching a protection order. Mr E ’ partner had left him, unexpectedly from his viewpoint, on 21 January taking the two children with her. The protection order had apparently been in place for many years, but

_{ignored by the couple who had been living together.}

E V NEW ZEALAND POLICE HC PMN CRI 2010-454-18 26 May 2010

[3] At this first appearance bail was granted. At the time the need for strict compliance was emphasised.

[4] On 12, 13 and 14 February, Mr E was absent from his bail address. He remained at large, despite an arrest warrant, until 18 March 2010 when he handed himself in.

[5] Mr E appeared again in Court. Fresh charges were laid, including further breaches of the protection order and threats to kill. Some detail of the charges Mr E now faces is required. It is alleged that:

a) on 29 January Mr E threatened to kill the partner of a woman he saw in the street whom he thought might know of the whereabouts of his children;

b) on 30 January he visited a man and threatened to burn his house down;

c) on 12 February he threatened to kill his brother over a dispute involving horses;

d) on 25 February he threatened to kill the lawyer appointed to represent

Mr E ’ children;

e) on 24 March he damaged a police cell he was in;

f) on 14 April he assaulted two police officers and damaged an interview room;

g) in addition to these charges, there are several allegations of breaching the protection order, normally by abusive calls.

[6] Some of these charges predate the first Court appearance, and others are much more recent. It is obvious that Mr E is a frustrated and angry man prone to abusive conduct, and particularly abusive language.

[7] As noted he was originally released on bail, breached it and went into hiding. On 18 March, when he reappeared having handed himself in, Mr E unsuccessfully sought bail. The Judge saw a risk of re-offending, some chance of witness interference (the former partner) and a risk of non-appearance given his immediately preceding conduct.

[8] On 28 April there was a renewed application at a call-over of the various charges. Then, as throughout this period, Mr E was acting for himself, and the Judge could not identify any change in circumstance.

Present appeal

[9] Mr E is now represented by counsel.

[10] In support of the appeal an affidavit is filed by the person who would provide the bail address. That offer is not straight-forward and some detail is needed.

[11] Ms Chandler is herself charged with assisting Mr E to avoid detention when he went on the run. She is said to have warned him not to return to Levin.

[12] Ms Chandler is also in a situation of some conflict with the police. I say that neutrally in the sense that I am not commenting on the legitimacy of it. Ms Chandler had complained about the way that the police carried out their bail checks. She has alleged deliberate inconvenience to neighbours, and also blatant efforts to provoke Mr E into breaching bail. She believes the police were trying to undermine her employment as well.

[13] Ms Chandler believes that she is a positive influence on Mr E and would help him to be compliant with bail conditions.

[14] In support of the application Mr Paino goes through the various groups of charges. Concerning the protection order, it is noted that the circumstances have an unusual aspect in that the order is dated 2005, and subsequent to it there was a

lengthy period of co-habitation. It is also noted that the complainant initiated a lot of contact.

[15] The threats against the lawyer arise in the context of concerns about Mr E ’ children. It is denied that the threats constitute a threat to kill. The April charges involving the police are analysed in the context of frustrations with how he was being detained and a view that police were obstructing him from obtaining access to a lawyer and legal aid.

[16] In support of the application it is emphasised that Mr E now has counsel which will address the source of much of his frustration. In terms of flight risk it is submitted more weight should be accorded to the fact that he voluntarily handed himself in. It is noted that no physical violence is involved in any of the allegations, there will be delay before trial and imprisonment is not a necessarily outcome if there are convictions.

[17] It is noted Mr E has now spent nine weeks in pre-trial custody and this will have brought home to him the consequences of his actions.

Decision

[18] I can discern no error in any of the decisions made to date. However, nine weeks in custody have now passed, and Mr E now has experienced counsel. These are matters which are not classic changes in circumstance. However, I can see the point that they may impact on the risks Mr E was perceived to present. Accordingly I have taken the opportunity to consider the matter more than from just a review of discretion viewpoint.

[19] There are some significant realities that Mr E must confront in terms of the key bail risks. Concerning a risk of re-offending, he has plainly displayed a consistent inability to control his emotions. This, in turn, has seemingly indisputably led him to make threats. Whilst it is in dispute whether those threats constitute the charge attached to them, that he has on occasions threatened people is not.

[20] Concerning a risk of flight, he has again manifested the risk. It is true that he handed himself in, but bail is not an event to be complied with as and when an alleged offender chooses. It is far more important that he chose to breach bail and go into hiding. As regards this Mr Paino described it more as living elsewhere than hiding. Mr E says he could not stay at the official address and could not get permission for another so had little option. Mr Paino does not ask the Court to comment on the wisdom of that process, but raises it to support a submission it is not a standard situation of bail breach. I understand the point but maintain the view that choices were made that give rise to real concern that Mr E will respect bail. He has a predisposition to act irrationally and, I suspect, as the mood takes him.

[21] A third factor is s 8(5) of the Bail Act 2000 which states that in breach of protection cases, the “paramount consideration” is the need to protect the victim of the alleged offence. I am aware that in this case there is evidence and allegation that the complainant has initiated much of the conduct, and I am not blind to the concern that sometimes, and I emphasise that word, the protection order can place disproportionate power in the hands of one party in circumstances where each, despite the order, choose to initiate and maintain contact. But, here, Mr E has shown a total inability to control himself. He threatens to do violence, and whilst it is to date only threats, he has exposed himself to the legitimate concern he may follow through. Mr E ’ previous convictions include firearm offences, domestic assault and assaults on a police officer. He has numerous convictions for breaching orders, he has convictions for escaping from lawful custody. Whilst it is true the current offending, if proved, is all “talk”, it is offending that rightly causes fear and it comes from a man who has previously been involved with guns and has used violence.

[22] The length of time to trial is always a concern. However, Mr E , quite properly but with a degree of risk, received bail initially and then chose to act as he did. The consequences are of his own making. Crown counsel advises that the first breach of protection order, for which a jury trial has been elected, has been accorded priority and a fixture is expected to be available in a matter of a few months at the latest. She indicated that counsel and the Court will be advised if the situation becomes otherwise.

[23] Weighing these various issues I have reached the independent view that bail should be declined.

[24] I finally record I would not have accepted Ms Chandler as a suitable address. The material she has filed does not give me confidence she would be a calming influence. In this regard Mr Paino fairly noted it is not a condition of her bail that she not associate with Mr E . That must be significant. Further, although she shares some of his views about how the police have acted, Ms Chandler has not acted as Mr E allegedly has, and so can be viewed as an example of different ways to respond. They are legitimate points although the situation would have still troubled me. Separately, I consider the charge she faces, relating as it does to Mr E , also makes her address unsuitable. Accordingly I would have required a different address to be offered.

_{[25] The appeal is dismissed.}

Simon France J

Solicitors:

P V Paino, Paino & Robinson, PO Box 40955, Upper Hutt, email: [e-mail]

S Johnston, Ben Vanderkolk & Associates, P O Box 31, Palmerston North, email: [e-mail]