De Silva v New Zealand Police HC Auckland CRI 2008-404-000170

[2008] NZHC 2378

ORDER PROHIBITING PUBLICATION UNTIL FINAL DISPOSITION OF TRIAL

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-000170

SCOTT DE SILVA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 June 2008

Appearances: R Reed for Crown

S Tait for Accused

Judgment:      24 June 2008

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

S Tait, Auckland

DE SILVA V NEW ZEALAND POLICE HC AK CRI 2008-404-000170  24 June 2008

[1]      This is an appeal against a refusal of bail in the District Court.  The appellant faces two charges of supplying a Class C controlled drug cannabis.   The charges arise out of a major police operation against two gangs in South Auckland.  It is fair to say that at least on the summary of facts before the Court the appellant’s involvement in that alleged offending is rather more limited than some of the other alleged offenders.

[2]      When the appellant was first before the Court on the first of these charges on

9 May he was remanded on bail.  However, he was arrested and brought before the

Court because he breached conditions of bail.  The Judge considered the matter on

12 June 2008 at which time the second charge was before him.  The Judge noted the breaches of bail and concluded:

You have not explained those breaches in any way to my satisfaction.  You are therefore now remanded in custody through to the next date, which is

10 am on 13 August.

You have had your chance, and I am afraid you have shown disregard for the orders. Therefore you are in custody.

[3]      Mr Tait advanced the appeal on the basis that the appellant did not accept the bail breaches were proven and secondly, that the Judge had not considered the relevant factors in s 8 of the Bail Act before declining bail.

[4]      In my view there is nothing in the first point.  The matter came before the Court following a number of bail checks by the police.  The bail check record has been presented to the Court.  From 25 May until 7 June there were eight instances where  according  to  the  police  records  the  appellant  had  failed  to  comply  with curfew.  He faced one charge arising out of that relating to a bail breach of 25 May. Of course the appellant was entitled to put in issue the bail breaches.  He could have done so either by giving evidence himself or by affidavit to answer the bail breaches the police relied on.   That was not done and that has still not been done for the purposes of this appeal.  For those reasons I reject the first submission by Mr Tait.

[5]      The second ground of appeal that Mr Tait advanced has, however, more force.  Given that the appellant had been arrested and brought before the Court on a breach of bail the Judge was required to reconsider the issue of bail in accordance with s 8.   There is no evidence from the Judge’s brief summary that he did give consideration to the s 8 factors.   In support of the appeal Mr Tait noted that the appellant’s involvement in the offending was relatively minor in the scale of the overall operation and emphasised that there would be a considerable delay till trial. Given the nature of the charges the appellant faces it may be that if not granted bail he may serve more time as a remand prisoner than he would be ultimately sentenced to if convicted.

[6]      Now that the matter is before this Court it is for the Court to consider whether there is just cause for continued detention of the appellant.  I accept on the basis of the information before the Court and particularly the appellant’s past record that there are real and significant risks in this case that he may fail to appear in Court or that he may offend whilst on bail.  I note that the appellant has a number of previous convictions but more relevantly there are a number of offences for which he has been convicted that he committed whilst on bail.   Those offences include breaches of community work, failure to answer District Court bail, breach of supervision and assaults on female as well as a number of other offences of dishonesty.  It is a matter of concern that the offences of failing to comply with Court orders occurred whilst on bail.  I also note that the current alleged offending is said to have occurred whilst he was on remand on bail on a count of assault on a female.  It is also not the first charge of assault on a female that the appellant has faced.

[7]      I agree with the thrust of the District Court Judge’s assessment that this appellant shows no regard for the orders of the Court and apparently has no ability to comply with  orders  of  the  Court  or  bail  conditions.    He  does  pose  a  real  and significant risk of failure to appear and likely offending whilst on bail.

[8]      I balance those risks against the matters that Mr Tait raised.  I agree that it is likely to be a considerable time before the appellant’s trial will be heard and that is a factor of real concern.

[9]      At present the Court is not in a position to assess in any detail the strength of the evidence and the probability of conviction and nor from that the likely length of imprisonment if convicted.  That sort of assessment would more properly be made following a depositions hearing.

[10]     The appellant has a past record of proven criminal behaviour.   As I have already noted also his history of offending whilst on bail and breaching Court orders is relevant to the issue of whether there is a real and significant risk that he may fail to appear or offend further.

[11]     There is no affidavit evidence before the Court to address the concern the Court has as to this man’s failure to comply with conditions and the risk of his offending whilst on bail.  I am driven to the conclusion that on the balance the real and significant risk of failing to appear and offending whilst on bail outweigh the

other factors in the appellant’s favour.  The appeal is dismissed.

Venning J