Foulkes v R HC Auckland CRI 2009-004-21612

[2011] NZHC 2418

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-004-21612

JAY FOULKES

Applicant

v

THE CROWN

Respondent

Hearing:         3 December 2010

Appearances: H Craven-McLeay as agent for P Kaye for the Applicant

A J Pollett for the Crown

Judgment:      3 December 2010

ORAL JUDGMENT OF WHITE J

Solicitors:      P Kaye, PO Box 941 Shortland Street, Auckland 1140

Crown Solicitors, PO Box 2213 Shortland Street, Auckland 1140

FOULKES V R HC AK CRI 2009-004-21612  3 December 2010

[1]      This is an application for continuation of bail by Mr Foulkes to enable him to pursue at a later date an application for EM bail.

[2]      Mr Foulkes faces four different charges in a 13-count indictment, namely:

a)       Manufacturing methamphetamine (x2) under s 6(1)(b) of the Misuse of   Drugs   Act   1975,   which   has a   maximum   penalty   of   life imprisonment under s 6(2)(a);

b)Supplying methamphetamine under s 6(1)(c) of the Misuse of Drugs Act 1975, which has a maximum penalty of life imprisonment under s 6(2)(a); and

c)        Possession  of  methamphetamine  for  supply  under  ss  6(1)(f)  and

6(1)(c)  which  has a  maximum  penalty of  life  imprisonment  under s 6(2)(a).

[3]      The trial is scheduled for 7 February 2011 in the District Court at Auckland. Mr Foulkes has been on bail at least since the committal date in March 2010.  Since then it appears that he has breached his bail on at least six occasions: see minute of Lang J dated 17 September 2010.

[4]      Counsel  for  the  Crown  has  also  drawn  to  my  attention  to  the  fact  that Mr Foulkes  was  picked  up  with  an  associate  in  breach  of  the  non-association condition to his bail.  He appeared in the District Court at the North Shore before District Court Judge McNaughton, whose decision apparently noted previous pre- committal breaches of bail and two “final” warnings.  The District Court Judge gave Mr Foulkes a third “final” warning.

[5]      The application for EM bail was referred to by Lang J in his minute of

17 September 2010 when he recorded at [8]:

I now remand Mr Foulkes on bail on existing terms to appear in this Court at

11 am on Friday 15 October 2010.  By that stage I expect that he will have filed an application for EM Bail and that the necessary report will have been

prepared.  Mr Foulkes is on notice that no similar incidents are to occur in

the future.  If Mr Foulkes sleeps though another visit by the police, he will remain in custody until 15 October 2010.

[6]      Mr Foulkes was granted a further adjournment by Courtney J on 5 November

2010.

[7]      Today his counsel, Ms Craven-McLeay, has advised that a new address has been obtained, but that no EM bail report has been obtained yet.  It might be possible to obtain a report as to the technical feasibility of the proposed EM bail address within 10 working days, but a full report would not be available until next year.

[8]      Ms Pollett for the Crown submitted that the Court would need to have a full report in order to consider an EM bail application.

[9]      In view of the background relating to Mr Foulkes’s numerous breaches of bail, his association with an associate in breach of his non-association bail condition, and the three “final” warnings he has already been given, I am satisfied that in terms of s 8(1)(a) of the Bail Act 2000, the risks of Mr Foulkes breaching bail and possibly interfering with witnesses and offending whilst on bail are such that he should not be granted bail at this stage.  That does not mean of course that he is not able to proceed with an EM bail application if a report can be obtained in time, but the fact of the matter is that he has left his application so late now that with the hearing date of

3 February 2011, it is unlikely that there will be time for that to be considered.

[10]     Mr Foulkes will therefore be remanded in custody to appear at the callover in the District Court at Auckland on 3 February 2011.

D J White J