H v Police HC Christchurch CRI 2008-409-48

[2008] NZHC 2230

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008-409-48

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 March 2008

Counsel:         M J Callaghan for Appellant

C Butchard for Respondent

Judgment:      14 March 2008 at Oral

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an appeal against the refusal of bail.

[2]      The  appellant  had  faced  charges  of  possession  of  precursors  for  the manufacture of methamphetamine on which he was facing trial.  Those charges arose from a search of the property which the appellant held the tenancy of in 2007.  The charges to which the present bail application relates, related to the subsequent search of two further premises occupied by, or at least associated with, the appellant where similar precursor substances were discovered.   Those searches were conducted in December 2007 and February 2008.  The learned District Court Judge regarded those

matters as not being explicable by coincidence in terms of the explanations which

H V NZ POLICE HC CHCH CRI 2008-409-48  14 March 2008

the appellant had offered.  He expressed himself as satisfied that there is a real and significant risk that if bail were granted similar offending would occur, which he described as serious offending, and therefore refused bail.

[3]      The refusal of bail, of course, involved the exercise of a discretion and I must consider whether it is shown that the exercise of that discretion has been made on a wrong principle without regard to relevant considerations or with regard irrelevant considerations or whether it is wrong in principle.

[4]      Mr Callaghan submits that the offending or alleged offending on all three occasions  is  related  in  that  he  describes  it  as  an  accumulation  of  the  alleged offending for the first set of offences occurring in February 2007 in that there was an amount of property and precursors on the first property, some of which was located in each of the subsequent searches.

[5]     Mr Callaghan submits that there are personal factors which support the proposition that bail should be granted;  namely the state of health of the appellant’s mother and a supportive letter from a former partner of the appellant.

[6]      The appellant does have a considerable history of previous offending and a number of instances of offending while on bail.  The number of previous offences is such that it may well be that s 12 of the Bail Act 2000 is activated.   The Judge however approached the matter on the basis that s 8 applied, and only s 8 applied, and I approach the appeal on the same basis.  The fact of the previous offending and the previous offending on bail is to be taken into account although it is to be noted that dates now from as long ago as the mid 1990s and would not be a matter on which, standing alone, strong reliance might be placed.

[7]      The real issue here is whether the Judge has erred in principle in the exercise of his discretion in reaching the conclusion that the sequence of alleged offending which has been uncovered here gives rise to a real and significant risk of further offending if bail were granted.  I do not consider that it can be said that the Judge has failed to take into account any relevant matters or has taken into account any matters which were not relevant in his assessment.  The view which he took was well within

the  scope  of  the  discretion  available  to  him,  and  the  discretion  should  not  be disturbed by this court.  For these reasons the appeal will be dismissed.

“A D MacKenzie J”

Solicitors:           M J Callaghan, Barrister, Christchurch

Raymond Donnelly & Co., Christchurch