Anderson v Police HC Auckland CRI 2005-404-27

[2005] NZHC 1635

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-27

KYLE JOHN ANDERSON

Appellant

v

THE POLICE

Respondent

Hearing:         4 February 2005 Appearances: Andrew Rice for appellant

Kevin J Glubb for respondent Judgment:  4 February 2005

[ORAL] JUDGMENT OF WILLIAMS J

[appeal against refusal of District Court to grant bail]

Solicitors:

Crown Solicitor, Auckland

Copy for:

Andrew M Rice, P O Box 105 495 Auckland. Judge P McAloon, District Court at Waitakere

KYLE JOHN ANDERSON V THE POLICE HC AK CRI 2005-404-27 [4 February 2005]

[1]    On 13 December 2004 McAloon DCJ declined the appellant Mr Anderson’s bail. He has now appealed to this Court against that refusal submitting that  the  Judge fell into error in reaching that decision.

[2]    The background to the matter is that Mr Anderson was charged with possession of an offensive weapon arising out of an incident that is said to have occurred on 2 September 2004 when he confronted a man whilst carrying a machete. He was remanded on bail in relation to that charge but whilst it  was outstanding, on 4 December, the Police were called to a domestic incident that occurred at Mr Anderson’s home. There had been an altercation, it seems, between Mr Anderson and his partner of four years concerning the couple’s financial circumstances, as a result of which an assault on the partner is said to have taken place. She then left the property, ran down the road and called the Police on her cellphone. He is said to  have driven alongside her, threatening her as she did so to the point where she took refuge in a local service station. As a result of that he is charged with male assaults female.

[3]    The Police then searched the property and discovered what they say was a clandestine drug laboratory in a shed at the rear including laboratory glassware and the chemicals toluene and hydrochloric acid. They claim that Mr Anderson was the only person with access to that shed As a result, he has been charged  with possession of precursor chemicals but ESR investigations are continuing and there must be the possibility that a more serious charge will be laid against him once ESR analyses are complete.

[4]    Then, on 13 December 2004, Mr Anderson was found by Police  in possession of a stolen motor vehicle. It is said that he was trying to get it to start when approached by the Police in the early hours of that morning. He claimed that  he was simply assisting a passer-by on that occasion but he has been charged with conversion of the vehicle as a result

[5]    As mentioned, he came before the Waitakere District Court on 13 December 2004 when McAloon DCJ declined bail. The Judge took the view that the two most serious charges were those laid under the Crimes Act 1961 s 194(b) and the Misuse of Drugs Act 1975 s 6(1)(b). The Judge recorded the submissions of Mr Rice  that the trial on the charges Mr Anderson faces would be quite some time off but that the matter at that point was scheduled for a pre-depositions hearing on 18 January 2005.

[6]    The Judge recorded the broad facts on the male assaults female charge and some aspects of Mr Anderson’s previous record. There are some offences involving violence including an earlier assault charge in March 2004, and a male assaults female charge in August that year. There is also a conviction, admittedly in  Australia, in 1990 on two charges of rape on which Mr Anderson was imprisoned for 7 years, that being increased to 10 years on appeal.

[7]    The Judge declined the bail application principally on the basis that the complainant in the male assaults female charge was concerned for her safety. She was also concerned at the possibility that Mr Anderson would contact her if bail  were granted and in particular because it was said that the argument between them was partly based on her objections following her discovery of the drug paraphernalia in the shed and her disclosure to the Police in that regard.

[8]    Mr Rice, who appeared for the appellant again today, pointed to the Judge’s remarks in declining bail where he said that it was not appropriate to grant bail “at this stage”. However that must be seen as no more than an acknowledgement of the jurisdiction for the Court to entertain repeated applications for bail should they be justified by the circumstances.

[9]    The Police opposed bail in the District Court principally on the basis of the likelihood of re-offending and the likelihood that Mr Anderson would contact witnesses were he granted bail and those factors plainly weighed significantly with the District Court Judge.

[10]   In this Court, Mr Rice submitted that the principal basis on which bail should now be granted is the time which Mr Anderson will spend in custody before trial by

comparison with the sentence he is likely to receive were he to be convicted on the offences he faces.

[11]   There is weight in that submission. Currently at least it appears that it would be towards the end of this year before Mr Anderson could be tried on the indictable offences he faces and it may turn out to be the case that any sentence which might be imposed on him after taking account parole entitlements would be not greatly in excess of the period he would spend in custody on remand.

[12]   However, that notwithstanding, this Court’s view is that the appellant has not shown that the decision of the District Court Judge was wrong on principle or was in error in any other significant way and accordingly the appeal requires to be dismissed.

[13]   What should, however, be said, is that once Mr Anderson’s trial position is more clearly available, there may be grounds for a further application for bail to be made. That is to say, that once depositions have been undertaken and the strengths  or otherwise of the Crown case more readily assessable and once a trial date can be more precisely assessed, there may then be grounds for bail having regard to the time which would then elapse if he remains in custody.

[14]   For the present, however, the appropriate decision is that no ground has been made out for interfering with the District Court Judge’s decision and the appeal is accordingly dismissed.

………………………………..

WILLIAMS J

4 February 2005