H v Police HC Auckland CRI-2007-404-20

[2007] NZHC 13

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-404-20

BETWEEN  H

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         31 January 2007

Appearances: Paul Chambers for Appellant

Ross Burns for Respondent

Judgment:      31 January 2007

JUDGMENT OF HARRISON J

SOLICITORS

Jeremy Bioletti (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

COUNSEL

Paul F Chambers

H V POLICE HC AK CRI-2007-404-20  31 January 2007

[1]      Mr H   has been charged with possession of precursor substances under the Misuse of Drugs Act 1975.  He first appeared in the District Court at North Shore on 18 October 2006 and was remanded in custody.   He appeared again on

16 November 2006 and sought bail.

[2]      Judge Laurence Ryan dismissed Mr H  ’s application.  He relied on three grounds.   First, he was satisfied that Mr H   presented a flight risk; Mr H   had failed to appear and breached bail on 13 previous occasions.  Second, he was satisfied that Mr H   presented a risk of interference with witnesses or other evidence.    Third,  he  was  satisfied  that  Mr H    presented  a  risk  of  further offending while on bail; he had offended 47 times while on previous bail.

[3]      These factors taken together provided an overwhelming basis for the Judge’s decision.  There was no appeal from it.  However, on 15 January 2007 Mr H   applied afresh for bail on the ground that his circumstances had changed.  Principally it was submitted that Mr H  ’s partner was suffering from a potentially terminal illness.  Judge Arthur Tompkins heard the application and dismissed it.  I note that, although the Judge did not refer to it, Mr H  ’s partner’s medical condition was known before the originating application for bail on 16 November 2006.

[4]      Mr H   has appealed against Judge Tompkins’ decision on a number of grounds.   His counsel, Mr Paul Chambers, has identified six in a memorandum in support.  Essentially they come back to the same proposition; that is, that the Judge failed to give any or proper weight to Mr H  ’s partner’s medical condition.

[5]      I am not satisfied that the Judge erred in law.  As I have noted, the grounds for refusing bail are overwhelming.  The circumstances as presented on 15 January

2007 were not changed from those which prevailed on 16 November 2006.  Even if they had strictly changed, the Judge did not err in refusing the application.  To the contrary, I am satisfied that he acted correctly, even though the police apparently consented.  In particular, Judge Tompkins weighed carefully the factors which told against the original application, namely the risks of further offending while on bail and of absconding.  As he noted, they were “too great to allow bail at this stage”.

[6]      It should not be necessary for me to recite that the grounds for this Court to interfere with the exercise of a statutory discretion are well circumscribed.   An appellant must establish that the Judge erred in law, failed to give proper weight to a relevant circumstance or was plainly wrong.  Mr Chambers’ arguments advanced in support of this appeal do not approach that threshold.

[7]      Additionally, I record my concern at the contents of Mr Chambers’ written synopsis of submissions.   They are emotive and intemperate, in parts verging on contempt of Court in personalised criticisms of Judge Tompkins.  It is inappropriate in this forum for counsel to indulge in subjective attacks on a Judge’s integrity, motivation or adherence to the oaths of his or her office.   I intend to direct the Registrar, as I have advised Mr Chambers, to refer copies of this decision and of his submissions to the Auckland District Law Society for consideration.

[8]      In these circumstances I dismiss Mr H  ’s appeal.

Rhys Harrison J