A v Police HC Christchurch Cri-2006-409-208

[2006] NZHC 1463

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2006-409-000208

CRI-2006-409-000209

A

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         23 November 2006

Counsel:         G B Henderson for Appellant

M N Zarifeh for Respondent

Judgment:      23 November 2006

ORAL JUDGMENT OF PANCKHURST J

[1]      This bail appeal has a somewhat convoluted background to which I must refer in order to supply a context for the decision.  The appellant, Mr A  , awaits trial upon charges of possession of cannabis for supply, possession of a pistol, possession of explosives (2) and cultivating cannabis.   He was charged with these offences as a result of events on 8 May 2006.  The 8th was a Monday.  It was also the date for a jury trial involving Mr A   in the District Court.  He did not appear. A bench warrant was issued.   Upon its execution Mr A   was found at a

property at Christchurch.   He was in possession of a relatively small quantity of cannabis and of cash of some few hundred dollars.

[2]      More significantly, he also had a key which opened a lockup of which Mr

A   is said to be the tenant.  Within the lockup was found cannabis weighing a

A V NZ POLICE HC CHCH CRI-2006-409-000208  23 November 2006

little over 10 kgs, almost half of which was good quality head.   There was also money, about $2,800 in the lockup and the pistol and explosives which are the subject-matter of the charges I referred to earlier.

[3]      Following his arrest Mr A   participated in the jury trial.   He was found guilty and sentenced by Judge Erber to 120 hours community work. Subsequently on 12 June the same Judge considered the bail application relevant to the  cannabis  and  Arms  Act  charges.     The  Judge  concluded  that  bail  was inappropriate.  He said this:

Looking at the situation I have a situation where Mr A   has failed to turn up on bail on the 9th  of June and has gone to ground and has not been able to be found for some time.  I have a situation where it is alleged that he is offending on bail where the allegations seem to me to have considerable merit and, lastly, I have the situation of where he has not turned up for his trial. He says that this was a mistake and that he thought that the trial was on another  day.     In  view  of  the  way  in  which  trials  are  progressed  in Christchurch I think this to be highly unlikely.

In all the circumstances I am left in the position of where I think there may be further offending on bail but, more importantly, that Mr A   may go to ground and may not be found, that is to say that he will not answer his bail.  His bail is, therefore, refused.  He is remanded in custody until the 20th of June.

The reference to 9 June was in fact to 9 June 2005, I assume, when the appellant was to appear in the District Court at Dunedin and did not do so.   But of even more moment it seems to me is the fact that the charges which became the subject-matter of the trial in May before Judge Erber relate to events which occurred in 2003.  Their disposition was delayed over a period of time when Mr A   was unable to be found.   Hence, there were two aspects which prompted the Judge’s concern about answering bail, the history of the matters which he tried in May and the failure to appear on the first day of the hearing of those matters before the jury.

[4]      The appeal is considerably out of time since a notice of appeal needed to be filed within 28 days of 12 June.   Mr Henderson has valiantly advanced certain propositions relevant to that aspect, perhaps the most relevant of them being that there has been a change of counsel and a re-evaluation of matters.   In any event I propose to consider the case on its merits rather than reject it out of hand on a time point.

[5]      There is one other aspect to which I should refer.   Mr A   is for sentence on 15 December in relation to charges of possession of ecstasy, methamphetamine, opium and methadone, being class A drugs in one case and class B drugs in the others.  The quantities involved are comparatively small and hence the charges are personal use based.  They may be most significant for the fact that they forge a link between Mr A   and the incriminating items which were found in the lockup, rather than in other respects.

[6]      With reference to the charges upon which the appellant awaits trial, there is to be a pre-trial conference tomorrow to set a trial date.

[7]      Despite everything which Mr Henderson has said in support of the appeal, I am not persuaded that Judge Erber reached a wrong conclusion.  Counsel argued that it was a genuine mistake that the appellant did not appear at the trial on 8 May this year.  I have doubts about that.  But even if it were correct, the background to which I have already referred suggests that the risk of non-appearance is far greater than might be indicated by non-appearance on that one occasion.

[8]      In short, it seems to me that there is, in this case, a very real risk that if granted bail Mr A   would go bush and would not be able to be found for an extended time.  That view is in part prompted by the strength of the Crown case.  It seems to me that the case is compelling, if not overwhelming, and that must, I think, increase the risk of non-appearance.  Even if, as Mr Henderson contended, bail was granted on strict terms as to residence, reporting and a curfew, I do not consider that the risk of flight and non-appearance could be met.

[9]      For all these reasons I conclude that the Judge reached a conclusion which was not only open to him but which was the right conclusion.  Time is extended, but

the appeal is dismissed on its merits.

Solicitors:

Glenn Henderson Barrister, Christchurch for Appellant
Raymond Donnelly & Co, Christchurch for Respondent