Boon v Police HC Auckland CRI 2006-004-21763

[2007] NZHC 1964

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-004-21763

BETWEEN  HOW CHUAN  BOON Applicant

ANDNEW ZEALAND POLICE Respondent

Hearing:         3 August 2007

Appearances: M Ryan for the Applicant

K E Latimer for the Respondent

Judgment:      3 August 2007

ORAL JUDGMENT OF PRIESTLEY J (Bail application)

Solicitors:

M Ryan, Haigh Lyon, P O Box 119, Auckland

K E Latimer, Meredith Connell & Co, P O Box 2213, Auckland

BOON V POLICE HC AK CRI 2006-004-21763  3 August 2007

[1]      Effectively Mr Ryan is making a fresh bail application.  The procedural hook on which the current appeal is based is a decision of M D Robinson DCJ in the Auckland District Court on 1 June 2007.  However, that appearance had at its heart the withdrawal, by the police, of various charges against the applicant.  Counsel are agreed that the best way for me to deal with this application is to treat it as a de novo application.  This Court clearly has jurisdiction given the charges the applicant faces.

[2]      The applicant’s trial in this Court is just over three weeks away on 27 August

2007.  He faces a six count indictment.  It is alleged that he possessed the Class A drug, methamphetamine, for the purpose of supply.  Supply is also alleged in respect of possession charges for the Class B and C Drugs, MDMA, and cannabis.   Two further charges are laid under the Arms Act and one charge of receiving.

[3]      Last month a s 344A application was heard by Asher J.  That pretrial decision has not yet been delivered.  Mr Ryan informs me that even if unsuccessful the trial will still proceed.

[4]      The applicant is a 51 year old man of Malaysian ethnicity.  He has, however, lived in New Zealand for a number of years.  He has family here, his roots are here, and he is a New Zealand citizen.

[5]      It  is  accepted  by  Mr  Ryan  that  there  was  an  unsuccessful  bail  appeal determined by Winkelmann J on 21 December 2006.   I have read her Honour’s decision.  She considered there was a significant risk of the applicant re-offending whilst on bail and that this had been correctly identified by the District Court Judge.

[6]      There have been various changes of circumstances since then.  These can be summarised thus:

•    A number of charges against the applicant have been dropped.

•   In respect of the Arms Act charges Mr Ryan points out that there is no fingerprint forensic evidence linking the firearm and ammunition to the applicant even though these were found in his vehicle.

These matters, submits counsel, indicate that since the last judicial scrutiny of the bail issue the Crown case across the board is weaker than it was.  That is correct if one is looking solely at the number of charges being faced.  However, the exstant charges specified in the indictment are serious charges and remain afoot.

[7]      Mr Ryan, quite properly, renews as a favourable factor the fact that when given bail last November to attend the funeral of his son, who had been murdered, the applicant adhered to his bail conditions.

[8]      A further factor, not before Winkelmann J, is an affidavit dated 29 May 2007 by  Shirley  Yang,  a  friend  of  the  applicant’s  two  daughters,  who  is  apparently prepared to allow the applicant to reside with her and her boyfriend at 234 Ponsonby Road where she has lived for the past two years.   That bail address has not been checked out by the police. There is no evidence of its suitability.

[9]      Mr Ryan candidly accepts that in respect of the possession for supply charges he is not able to dispute the assertions contained in the summary of facts that when his vehicle was stopped by the police the applicant was found with 46 ecstasy pills in his shirt pocket and 20 point bags each containing methamphetamine in a black case attached to his belt.

[10]     A favourable matter so far as the applicant is concerned is he has no previous convictions.

[11]     Finally Mr Ryan submits, understandably so, that his task as trial counsel would be assisted if his client were to be on bail during the pretrial phase.

[12]     One matter,  which  is  of  some concern,  is  a  suggestion  contained  in  the grounds for opposing bail, prepared by Constable Woods, suggesting the applicant used the opportunity of his son’s funeral to visit alleged criminal associates and also interfere with witnesses during the funeral time phase.  There is also the assertion of another witness whose daughter’s pet rabbit had its ears cut off.

[13]     Mr Ryan is on strong ground when he submits that these are speculative matters in respect of which there is no evidence.  I accept that, but on the other hand I note that there is no affidavit evidence from the applicant in support of his application at all.

[14]     Given the proximity of the trial, where there is a flight risk or a risk of interfering with witnesses, an accused’s motivation will increase.

[15]     I consider on balance, having regard to the policy of the Bail Act and s 8 criteria, that there are no grounds for changing the status quo.   Accordingly the application is dismissed.

...........................................… Priestley J