C v Police HC Wellington CRI-2010-485-18

[2010] NZHC 282

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-485-18

C 

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         26 February 2010

Counsel:         R J Stevens for Appellant

J A Ongley with A J Ewing for Crown

Judgment:      26 February 2010 at Oral

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an appeal against the refusal of bail.  The appellant initially appeared in the District Court on a count of possession of morphine for supply, possession of a pre-cursor substance and offering to supply morphine.  Those charges resulted from the execution of a search warrant on 14 November 2009.   He appeared and was granted bail on 20 November.   On 3 February this year the appellant and a co- accused were in their vehicle when the vehicle was searched and morphine sulphate

tablets and a quantity of over $5,000 in cash was found in the car.

C   V NEW ZEALAND POLICE HC WN CRI-2010-485-18  26 February 2010

[2]      He appeared on those charges on 8 February.   The application for bail was considered by Judge Becroft and bail was declined.   This appeal is against that refusal of bail.

[3]      Section 16 of the Bail Act applies but the considerations which are relevant are those in s 8.   The risk of non appearance was not a matter that required any particular consideration at that stage and it is not a relevant issue now.  As to the risk of interfering with witnesses or evidence, that had formed part of the grounds of opposition but that was not pursued and that aspect of the matter had not been relied upon when the matter was considered by Judge Becroft.   So the principal issue in terms of s 8 was the risk of re-offending while on bail.  The appellant is, apart from the charges which he currently faces, a first offender in that he does not have any prior convictions for similar or any other charges.

[4]      In his consideration of the matter Judge Becroft relied significantly upon the strength of the case against the appellant.  He noted the presumption of innocence and he also noted the appellant is a very heavy user;  that he is addicted to morphine sulphate and its derivatives and is part of the methadone programme.  The quantity involved in relation to the current charges is the subject of the presumption as to supply and it is about two and a half times above the presumptive amount.

[5]      It is also clear that as well as the strength of the case, and really as a counter balancing factor, one of the important considerations was the length of time until trial.  The Judge noted that it could not be heard for maybe a year;  that is until next year.  The Judge reached the view that there was just cause for continued detention but added that if there was further clarity as to the time delay, or if in due course the case proved not to be as strong as it seemed to him to be the case then, then the matter could be reconsidered and he indicated that that would be a matter that could call for reconsideration in the District Court.

[6]      The matter is pursued here by way of appeal.   In support of the appeal Mr Stevens has filed an affidavit from the partner of the appellant who explains in more detail the circumstances relating to the finding of the cash and of the tablets in the car and of the subsequent search.  Those potentially do provide some explanation

of the presence of the cash which would be an important pointer towards supply and also do provide some further explanation of the circumstances in which the tablets came to be in the car.  The appellant’s essential case is that the drugs were for his own consumption and not for supply.

[7]      It is generally preferable if there is a change in circumstances the matter of bail  be  taken  up  by way of  a  fresh  application  for  bail  rather  than  an  appeal. However, I think that in the circumstances it is appropriate in this case for me to review the matter but I emphasise that I do so on the basis of material which was not before the Judge which means that I must necessarily depart to some extent from the ordinary basis of considering whether the decision of the Judge contained an error of principle of law or was plainly wrong.  I approach the matter afresh on the basis of the additional material that is now before me.

[8]      There are three considerations which I think are of prime importance.    The first two would tend to weigh against continued detention.  They are firstly the fact that the appellant is a first offender.  So that there is no history of offending while on bail apart from the offending which he now faces.  The second factor is the time until trial.  While the situation is not much further advanced than it was before the Judge, a committal date has now been fixed and from that it does appear that the trial would not be before next year at the earliest.  That would be a very long period of remand in custody.

[9]      Against that there is to be weighed the seriousness of the charge, and the strength of the case.  As I have said that the strength of the evidence needs to take account of the additional evidence now filed.  As to the risk of re-offending:  if the case is indeed one of possession for supply, and if the case for possession for supply were strong, then the two arrests in quite short order (the second while on bail) tend to suggest a risk of re-offending.  If, however, the circumstances were that at least a large part of the drug may have been for own use, then the situation that an addicted user may be found in subsequent possession shortly after an arrest is by no means uncommon.  I would on that basis attach less weight to it.

[10]     Having  considered  all  the  material,  and  I  emphasise  that  this  includes material which was not available to the learned District Court Judge, I have reached the view that the case for the proposition that the possession was for the purpose of supply is not so strong as to point to a sufficiently significant risk of offending in that  way while  on  bail,  such  as  to  outweigh  the  two  other  factors  that  I have mentioned;  that is the fact that the appellant is a first offender and the lengthy time until trial.   In those circumstances, weighing the matter anew and not simply reviewing the weighting which the learned Judge gave to it, I have reached the view that the risk of re-offending can be addressed by the granting of bail on appropriate conditions.  Of course if that expectation should prove unfounded and there were to be any breach of conditions then it could not be expected that bail would continue.

[11]     In the circumstances therefore the appeal is allowed and bail is allowed on the following conditions:

a)        The  appellant  is  to  reside  at  111A  Tasman  Street,  Mt  Cook, Wellington;

b)        He will be subject to a curfew at that address between the hours of

9pm and 7am daily;

c)        He must present himself at the door when required by Police;  and

d)       He is to report daily to the Wellington Central police station between

4pm and 7pm.

Solicitors:           Crown Law, Wellington, for Respondent

Fanselows, Wellington, for Appellant

“A D MacKenzie J”