Harris v Police HC Auckland CRI.2004-404-4520

[2005] NZHC 1682

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI.2004-404-4520

RODERICK SIDNEY HARRIS

Applicant

v

POLICE

Respondent

Hearing:         3 May 2005

Appearances: Murray Gibson for applicant

Anna Adams for respondent Judgment:  3 May 2005

[ORAL] JUDGMENT OF WILLIAMS J

Solicitors:

Crown Solicitor, Auckland, for respondent

Email: [email protected]

Copy for:

M S Gibson, 34 London Street, St Mary’s Bay, Auckland, for applicant Email: [email protected]

HARRIS V POLICE HC AK CRI.2004-404-4520 [3 May 2005]

[1]    This is the second application by Mr Harris for bail. He is required to apply to this Court for bail because he was convicted of possession for supply of a Class A drug in 1992 and accordingly the Bail Act 2000 s 16(1)(a) applies to his case.

[2]    Mr Harris is one of those charged in which is known as “Operation Leningrad”, an interception warrant case resulting in the arrest of a large number of people. One of those remains at large.

[3]    He applied to this Court for bail on 17 December last but the application was declined by Heath J. That Judge, after reciting the numerous offences Mr Harris currently faces, recounted the background facts including the availability of accommodation with Mr Harris’ son in Russell and the likely delays in hearing coupled with Mr Harris’ extensive list of previous convictions including convictions for failing to answer bail. The Judge was clearly concerned at the possible risk of flight and said he was also concerned about the “release of Mr Harris into the community in the Bay of Islands during the forthcoming holiday season particularly without any supervised or a surety”.

[4]    Although the Judge declined bail he indicated that Mr Harris might re-apply after pre-depositions had occurred. That was then expected to take place on 4 February 2005 but the current position is that pre-depositions have been adjourned and will not now be heard until July this year, largely because of the time required in such interception warrant cases for full and proper disclosure to defence counsel.

[5]    The terms on which Mr Harris seeks bail remain largely those discussed by Heath J in December last.

[6]    Mr Harris is now charged not only with assault on a police officer but with conspiracy to supply methamphetamine, to manufacture ecstasy, to supply or administer methamphetamine (3 counts), and conspiracy to manufacture methamphetamine. He says he again has available the address for him to be accommodated in Russell with his son and the son’s partner, and, additionally since December, Mr Gibson advises that Mr Harris’ mother is prepared to offer herself as

surety, something she has apparently done on earlier occasions when the applicant was facing charges.

[7]    Although it must only be a draft at this stage, the summary of facts relating to “Operation Leningrad” shows that a number of interception warrants were issued from September 2004 onwards over the next two months. They were initially directed towards a Mr Grey but subsequent warrants also included other targets including Mr Harris and a number of others.

[8]    The caption sheet also has attached a précis of what are said to be  a number of telephone calls in which Mr Harris was a participant which, if the transcript is accurate, certainly suggests that he was relatively deeply involved in the matters which have led to his being charged.

[9]    In considering the various criteria for bail appearing in s 8, the first  is whether there is a risk if granted bail that Mr Harris  may not appear.  In that regard he has a number of previous convictions which might bear on that question. They include breach of community work, contravening a protection order and at least two failures to answer District Court bail

[10]   Mr Gibson acknowledges those matters but makes the point that Mr Harris has been granted bail by this Court on earlier occasions and has never breached High Court bail.

[11]   The second question is whether there is a risk that if granted bail Mr Harris might interfere with witnesses or evidence. Because of the nature of interception warrant cases, most of the major witnesses will be police officers and persons employed by ESR where the likelihood of intimidation cannot be expected to be a major factor. However there are always some civilian witnesses and Ms Adams makes the point, too, that one of those who would have been charged under “Operation Leningrad” remains at large so there is a chance, although probably fairly slight in Mr Harris’ case, of interference or contact with witnesses or ossible co- accused.

[12]   The third issue is whether there is a risk that Mr Harris might offend whilst  on bail if granted bail. In that regard he faces a formidable hurdle. He has a large number of previous convictions –some 44 or more – which include a wide range of drug offending the latest of which is possession of precursor materials in 2001, stretching back to 1980 where he was convicted of cultivating cannabis. Between times the offences include cannabis, cannabis seeds and paraphernalia, morphine, heroin, cannabis resin and the like. So he certainly has a significant record of previous convictions.

[13]   Perhaps more importantly in this case  the  list  of  offences  committed  by Mr Harris whilst on bail extends over some seven pages of record. That must be treated with a certain caution given that with a person with as many previous convictions as Mr Harris has it was almost inevitable that in the run up to trials or pleas there would have been offending whilst on bail. But nonetheless it is a significant feature in this case, particularly when Mr Harris is facing offences as serious as those arising out of “Operation Leningrad”.

[14]   It is also significant that he has been sentenced on about ten occasions to terms of imprisonment previously and that his previous record also includes convictions for violence and Arms offences. Ms Adams makes the point that there are also flight risks to be inferred from the previous list.

[15]   It is unfortunate for Mr Harris that if this application for bail is declined he will remain in custody for a lengthy period before trial. If pre-depositions on a trial of this magnitude are not expected before July of this year, even though the magnitude of the trial and the number of accused may shrink before hearing, it will obviously be a trial requiring several weeks of this Court’s time and at the very earliest is unlikely to be tried before early 2006. The balancing question in that regard, therefore, is whether the s 8 requirements outweigh that lengthy period of remand in custody and, as an aspect of that, whether bail terms can be formulated which would sufficiently lessen the risk of offending on bail to justify granting bail to Mr Harris.

[16]   In that regard, whilst any terms of bail would include residence, curfew clauses and the like and a surety from his mother plus geographical limitations, there still remains the possibility that Mr Harris might involve himself in re-offending and, given the list of previous convictions particularly drug offending and the offending whist on bail, that must be a significant risk. It is also possible, of course, with offending such as this, for telephone or other communications not to be barred by any geographical limitation and so give rise to further offending.

[17]   In the end, regrettable though it may be, the chances of Mr Harris re- offending whilst on bail, and the other factors of s 8, outweigh the length of time he must remain in custody pending trial and accordingly this further application for bail is dismissed.

………………………………..

WILLIAMS J

3 May 2005