F v POLICE [2021] NZHC 1938

F v POLICE [2021] NZHC 1938 [29 July 2021]NOTE: PUBLICATION RESTRICTIONS APPLY PURSUANT TO S 19(1) OFTHE BAIL ACT 2000. SEEhttp://www.legislation.govt.nz/act/public/2000/0038/latest/DLM68927.htmlIN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2021-425-14[2021] NZHC 1938BETWEEN FAppellantAND NEW ZEALAND POLICERespondentHearing: 27 July 2021Appearances: R J Little for AppellantS N McKenzie for RespondentJudgment: 29 July 2021Reissued: 28 September 2021Effective dateof Judgment: 29 July 2021JUDGMENT OF MANDER JThis judgment was delivered by me on 29 July 2021 at 4 pm pursuant to Rule 11.5of the High Court Rules 2016Registrar/Deputy RegistrarDate: .[1] F appeals a decision of Judge Turner declining his application to vary acondition of his bail, namely, to remove the requirement that he is "not to have contactwith [his estranged wife] except for the purposes of Family Court proceedings".1[2] F has pleaded guilty to a charge of attempting to make an intimate visualrecording after having been provided with a sentence indication of supervision andreparation.2 That charge involved offending against an employee of F who was notrelated to either himself or his former wife. It is understood his wife was to giveevidence regarding admissions that F made about the offending. His sentencing isscheduled to take place on 10 August 2021.[3] F and his former wife are engaged in Family Court proceedings regarding theirson. As a result of the current criminal proceeding, F's contact with his family islimited to supervised contact with his son at an independent supervising provider'spremises. F seeks the variation in order to allow him to have contact with his estrangedwife because, he says, of the need to communicate with her over childcare issues and,in particular, the supervised contact arrangements.[4] The Police oppose the variation. It appears that opposition is primarily, if notsolely, based on the views expressed by the former wife, who has made it clear thatshe does not want any contact with her ex-husband. F's application to delete the bailcondition was declined by the District Court. It considered there was no need for F tocontact his former wife regarding the supervised contact and rejected the submissionthat it had no jurisdiction, despite F's guilty plea, to impose such a requirement as acondition of bail.[5] In support of F's appeal, Mr Little submitted the District Court Judge had failedto properly take into account the mandatory considerations prescribed by s 8 of theBail Act 2000 (the Act) when assessing the appropriateness of the existing bailconditions now that F has pleaded guilty. Counsel submitted that Judge Turner hadplaced excessive weight on the fact the former wife did not want contact with herestranged husband. Mr Little stressed the importance of there being a reasonable1 Police v F DC Invercargill CRI-2021-025-53.2 Crimes Act 1961, ss 216H and 72.nexus between the Court's discretion when imposing terms of bail and the risksassociated with the defendant being admitted to bail, and that the current Family Courtproceeding was an irrelevant consideration. With F having now pleaded guilty andaccepted the facts of the offending, it was submitted the risk of interference withwitnesses is no longer an extant concern and that the removal of the condition not tohave contact with a witness is now unreasonable.[6] In opposing the appeal, Ms McKenzie submitted the District Court Judge wasentitled to decline to delete a non-association clause under the exercise of hisdiscretion under s 13 of the Act, which governs the approach to be taken by the Courtto issues of bail after a defendant has pleaded guilty. It was submitted that widerconsiderations of the interests of justice prevail and that, because sentencing was onlytwo weeks away and supervised contact arrangements in place, maintenance of thestatus quo in the interim was preferable. Ms McKenzie argued that conditions couldbe imposed in relation to a sentence of supervision that could include continued non-association and that the Court had been correct to take into account the views of theappellant's former wife.[7] Issues relating to bail after a defendant has pleaded guilty or been found guiltyare regulated by s 13 of the Act. Subsection (3) provides as follows:13 Exercise of discretion when considering bail pending sentencing(3) When considering the interests of justice under subsection (1), thecourt may, instead of the considerations in section 8, take into accountthe following considerations:(a) whether the defendant is likely to receive a sentence ofimprisonment:(b) the likely length of time that will pass before the defendant issentenced:(c) the personal circumstances of the defendant and thedefendant's immediate family:(d) any other consideration that the court considers relevant.[8] Despite the arguable indication to the contrary in subs (3), s 8 considerationsare still relevant to the post-conviction situation and both this Court and the Court ofAppeal have made observations to that effect.3 Similarly, the need for there to be alinkage between the imposition of a bail condition and a perceived risk of admitting adefendant to bail has been emphasised by the courts on numerous occasions.4 Itfollows that the continuation of the non-association condition relating to F's formerwife is required to be assessed against the particular concern that it seeks to manage.With F now having pleaded guilty that purpose is not readily discernible, at least as itrelates to the criminal proceeding.[9] There may be good reason for extending a non-association condition in favourof a witness after a defendant has pleaded guilty, particularly so where that person isthe victim of the offending, or where they have a role in the sentencing process that isto follow the defendant's conviction. There is no doubt the Court retains itsjurisdiction to impose or maintain such conditions. However, it is not apparent thatthis is one of those situations where good reason for extending the condition exists.[10] Ms McKenzie argued that there remains an extant name suppressionapplication that may cause F to reconsider his plea, but I do not consider a decisionadverse to F in respect of that issue could realistically lead him to successfullychallenge his plea. Nor is it apparent from the circumstances of the offending, whichdoes not involve either the former wife or any other family member, that any conditionof a sentence could foreseeably include a prohibition that F not contact her when shehad no involvement in the events that constituted the offending.[11] The reason F puts forward to challenge the existing condition is to allow himto communicate with his former wife should that be necessary. Mr Little referred to arecent situation where F and his sister (an approved supervisor) had madearrangements to collect the child which involved travelling some distance into thecountryside. Unbeknownst to F, his former wife had understood that the child was tobe dropped off in the town where he resides. Complications resulted which, it wassuggested, would have been avoided had the condition not been in place. Despite that3 Webb v Police HC Tauranga CRI-2005-463-65, 23 September 2005 at [14]; R v Leone [2009]NZCA 325, (2009) 24 CRNZ 231 at [6]; Williams v R HC Auckland CRI-2007-404-6, 15November 2007 at [6].4 Boggs v Police [2006] NZAR 193 (HC); MacInnes v Police [2012] NZHC 3048 at [28]; R v Fatu[2005] 22 CRNZ 524 (CA) at [7].experience, I doubt there is any real need at present for F to directly contact his formerwife. Clearly, it is her preference that he does not. Having made that observation, Inote the present conditions, somewhat ambiguously, provide that he is not to do so"except for the purposes of Family Court proceedings".[12] I am unable to perceive any justification for the continuation of the non-association condition given the present state of the criminal proceeding. Such acondition, of course, has no role in managing the relationship between F and his formerwife for the purpose of the current Family Court proceedings. The appeal musttherefore be allowed. However, that conclusion is in no way an endorsement of theapparent view expressed by F that he may be justified in contacting his former wife.To the contrary, there is no apparent need to do so. As Judge Turner observed, an orderwas made last week permitting a further 12 sessions of supervised contact between Fand his child, and there is no need, in light of that order, for there to be any directcommunication between himself and his former wife. As also noted by the Judge andemphasised by Ms McKenzie, F is legally represented in respect of the Family Courtproceeding. If a need arises, he can contact his counsel who in turn can contact hisformer wife's lawyer and/or lawyer for child should issues arise concerning theexercise of contact.Result[13] The appeal is allowed. The condition that F not have contact with his formerwife except for the purposes of Family Court proceedings is deleted.Solicitors:Eagles Eagles & Redpath, InvercargillCrown Solicitor, Invercargill