G v Police HC Auckland CRI 2008-404-193

[2008] NZHC 2475

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-000193

G

Appellant

v

POLICE

Respondent

Hearing:         4 August 2008

Counsel:         C B Wilkinson-Smith for Appellant

A Pollett for Respondent

Judgment:      4 August 2008

JUDGMENT OF FOGARTY J

[1]      Mr G   has been arrested for breach of bail.   During a curfew inspection a friend of his, Mr Mafu, was found on the premises.  Mr Mafu appears on police intelligence lists as a member of the Killer Bees.  On the evidence I have heard he is, if not a member of the Killer Bees, certainly a very close associate of the Killer Bees.  I am not satisfied, however, that there was a deliberate breach of (c) of his bail conditions.  There is room to believe that Mr G   may have thought that Mr Mafu was not a member of the Killer Bees, although he can have had no doubt that he was a close associate of the Killer Bees.   Prior to being released on bail he

had made a statement on 28 February to a Detective Gollan describing Mr Mafu as a

G V POLICE  HC AK CRI 2008-404-000193  4 August 2008

member of the Bad Troublesome Ward or BTWs and that does indeed, on police intelligence, appear to be the case as well.

[2]      I am satisfied I am looking at a marginal issue as to whether there has been a breach of condition (c) of the bail bond and I find that that breach has not been proven.   Had it been proven, s 8(3) of the Bail Act 2000 requires me to consider whether or not the fact of the breach raises a real and significant risk that Mr G   would not attend for trial or would interfere with witnesses or would offend.

[3]      Having heard evidence from the detective of the close contact of Mr Mafu with the Killer Bees I am satisfied that talking to Mr Mafu would, at the very least, be equivalent to talking to a member of the Killer Bees because Mr Mafu is such a close associate of the Killer Bees.   It is, accordingly, appropriate that Mr G   does not have any contact with Mr Mafu even though he has known him since primary school and it has been described to me that he is one of his best friends.

[4]      From the conduct that has taken place so far I do not think that continuation of bail will raise the risk of Mr  G   not  appearing for  trial,  and,  secondly, continuation of bail, which is electronic bail to the home of his mother and partner, will not in the circumstances raise any additional risk of him being in contact directly or indirectly with Crown witnesses.  Thirdly, because the police case is that he was at the retail end of supply, selling to users, it is very unlikely, as the history of bail to date illustrates, that there is any real or significant risk that he will continue to be, if he was in the past, selling methamphetamine to end users while on e-bail.  In short, e-bail secures his presence at 3 Sandrine Avenue.   He cannot leave that address without triggering alarms and that is the greatest protection against these three risks set out in s 8(1) of the Bail Act.

[5]      For that reason I think it is appropriate for bail to continue.   However, the history of the matter has shown up inadequacies of condition (c).   The agreement between counsel and the proposal now is that all visitors to 3 Sandrine Avenue be pre-approved by the police so that there will be at all times a list held by the police of people who may visit 3 Sandrine Avenue.  If there is any dispute as to whether or not

a person should go on that list then it is possible for either police or Mr G  , through his counsel, to apply to the Court for variation of the bail conditions.

[6]      For that reason bail will be renewed by deleting clause (c) and substituting this:

•   He  is  not  to  communicate  or  contact  or  attempt  to  communicate  or contact any persons other than those who are named in a list held by the police which list can be varied from time to time by the police.

[7]      I turn also to condition (d) that he is not to consume alcohol, which is part of condition (d).  He was found to be consuming alcohol on the curfew visit.  But that condition is not on the bail conditions that he signed and Mr Wilkinson-Smith’s recollection is that there was some discussion  by the  Judge  on  the  question  of whether it be a condition of bail not to consume alcohol but it was actually the other way, namely, that there would not be a condition that he was not to consume alcohol.

[8]      I am content, in the circumstances, to delete the first sentence of condition (d) “he is not to consume alcohol” leaving the second sentence in place on the basis that consumption of alcohol at his residence is not going to significantly affect the three risks that have to be addressed under s 8(1), namely, attendance at trial, interference with witnesses or future offending.

Solicitors:

C B Wilkinson-Smith, Auckland, for Appellant

Meredith Connell, Auckland, for Respondent