I v Police HC Auckland CRI 2009-404-312
[2009] NZHC 2576
•1 December 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2009-404-312
I
Applicant
v
POLICE
Respondent
Hearing: 1 December 2009
Appearances: R Mansfield for applicant
R Reed for respondent
Judgment: 1 December 2009
BAIL JUDGMENT OF ALLAN J
Solicitors:
R Mansfield [email protected]
Crown Solicitor Auckland
I V POLICE HC AK CRI 2009-404-312 1 December 2009
[1] Mr I awaits trial on separate charges of aggravated robbery and possession of methamphetamine for supply. These offences occurred several months apart. Initially he was granted bail on the aggravated robbery charge, but when he came before the District Court on 23 September 2009 on the drug related offending, Judge Rota declined bail upon the ground that there was a risk of offending while on bail and a further risk of interference with witnesses or evidence. Mr I appealed to this Court. Courtney J dismissed the appeal in a judgment given on 22
October 2009.
[2] Mr I has renewed his bail application. He was committed for trial in this Court on the aggravated robbery charge, but has since been middle banded back to the District Court. The drug related offending remains in that Court. This Court has jurisdiction either inherently, or by reason of the fact Mr I was initially committed to this Court for trial on the aggravated robbery charge.
[3] It is necessary to outline the alleged offending at the outset. On 16 May 2009 the applicant is said to have been one of two offenders who, armed with a firearm, entered a residence in Whenuapai for the purpose of collecting a debt. A pistol was presented and an i-pod and cell phone taken from one of the occupants. The primary target of those offences appears not to have been in residence at the time. Mr I simply says he was not a participant in that incident.
[4] The applicant was released on bail following his appearance on that charge, but failed to present himself at the District Court on 7 September 2009. Mr Mansfield advises the Court that Mr I ’s failure to appear on that day was the result of a simple mistake; he believed his next appearance was on
17 September. He voluntarily surrendered himself and appeared in the Waitakere District Court again on 8 September 2009, when he was remanded on bail both on the aggravated robbery and the failure to answer bail charges. Later he was convicted and discharged on the failure to answer bail charge.
[5] However, on 21 September 2009, the applicant was the driver of a vehicle
(not his own), which was stopped by the police at about 1.20 am. In the vehicle the
police found a firearm which they say bears some similarity to that used in the aggravated robbery charge, although its identity will never be firmly established. The applicant was also found in possession of a fabric glasses case in which there were both drugs, (3g of methamphetamine), and a glass methamphetamine pipe. A belt bag Mr I was wearing around his waist contained, among other things,
$1400 in cash.
[6] Following that apprehension, the applicant appeared once more in the Waitakere District Court on 23 September 2009, that being the occasion upon which Judge Rota declined to grant bail.
[7] The second alleged offence was committed while the applicant was on bail for the aggravated robbery. The Crown will invite the inference to be drawn that the alleged debt collecting exercise in which the applicant was involved in May was somehow related to drug-related activities in which the police say the applicant was involved in September.
[8] Mr Mansfield accepts that, against that background, Courtney J was right to identify a risk of offending while on bail, but that the Court is in a position to impose strict conditions attached to EM bail, and to direct the giving of a surety (which is available). He submits that those two initiatives will be sufficient to ameliorate the risk of offending while on bail to the point at which the grant of bail can be justified.
[9] Mr I is a member of an immigrant Khurdish family who are plainly making a contribution to life in this country. There is an impressive degree of support for him as he works his way through his response to the offences with which he is charged.
[10] Before the Court there is a report from the EM Bail Service. It is proposed that the applicant be curfewed on a 24 hour basis to an address occupied by his partner and their one year old son, namely 1/5 Longbill Place, Glen Eden.
[11] Mr Mansfield submits the range of conditions proposed will be sufficient to ensure no breaches of bail occur, and in particular no further offending occurs, while the applicant is on bail.
[12] In that respect, I note that neither of these offences occurred at home, nor do they have any direct connection with the home address. Of course that is not to say if the applicant is so minded he may not simply carry on his allegedly unlawful activities from the home address. The risk he might do so is to be measured, to some degree, by reference to the extent to which his wider family is likely to impose moral authority upon him. His offending has occurred to date despite their support, but in my view, the fact they are there to provide both oversight and support is a factor to be borne in mind when considering whether EM bail is likely to be effective.
[13] The second initiative is the provision of a surety. The applicant’s family has, between them, organised a surety in the sum of $50,000 which will be made available to be paid into the trust account of the Registrar of the High Court on interest bearing deposit, to serve as security against any breach of conditions that might be imposed as part of the grant of EM bail. Such a surety, provided in that way by members of the appellant’s family with such a stake in his compliance with the terms of bail, bestows a degree of security which I consider justifies the grant of EM bail in this case.
[14] The applicant must realise that he will have one opportunity only to remain trouble-free while on bail and awaiting trial. Not only, if he breaches the terms of his bail, will he inevitably be remanded in custody, but he will have to answer to members of his family for the likely estreat of the sum provided as surety.
[15] In reaching the conclusion that bail is appropriate, I have taken into account the likely delay before trial. It seems there have been some improvements in the District Court in recent months, arising from the availability of additional Courtrooms. Nevertheless, the first of the two charges, namely the aggravated robbery, is unlikely to come to trial until at least mid-2010. While that is not as great a delay as is sometimes encountered, for example in large scale drug offending, it is
a significant period and it may be that the trial will not be reached until the latter part of next year.
[16] I have taken into account also the interests of the victims, one of whom has indicated he has put his house on the market because he is fearful of the applicant and his co-offender. On the other hand, as Mr Mansfield has pointed out, there has been no problem about intimidation or other contact between the applicant and the victims during the period Mr I was on bail. Given the terms of EM bail I consider the victims’ rights are sufficiently safe-guarded and that there is very little risk their safety or security will be put in jeopardy.
[17] Ms Reed quite properly points out that there can be no absolute certainty that the applicant will not continue to offend from his home. That point was emphasised in R v Crichton [2007] NZCA 593 by the Court of Appeal. On the other hand the home was not used at any point to facilitate the offending now charged.
[18] A further factor I have taken into account is that Mr I is currently running a relatively newly established business, which is both entirely legitimate and useful. He is to be commended for that. Mr Mansfield advises that he will be able to manage the business from home by telephone and computer. It is desirable that the business not simply be left to languish; it will absorb Mr I ’s time and energy, and limit the temptation he might have to engage in offending from the house.
[19] For these reasons I am satisfied it is appropriate to release Mr I on bail, but this is a once-only opportunity which he cannot expect to be proffered again if there is any breach of the bail conditions.
[20] The following conditions are to apply to the grant of EM bail:
a) The applicant is to reside at 1/5 Longbill Place, Glen Eden;
b) He is to be and remain at that address on a 24 hour electronic curfew;
c) He is to present himself at the door if called upon by a member of the police;
d)He is not to contact the complainants or any Crown witness directly or indirectly, neither may he contact any person nominated in writing by the police or the EM bail assessor;
e) He is not to possess or consume alcohol and/or illicit drugs;
f) He is to undertake such alcohol and drug tests as may be administered at the door at the request of the police;
g) Save in an emergency he is to be absent from the EM bail address only for the purpose of attending Court, legal and medical appointments. Such approval to be sought from the EM bail assessor at least 48 hours prior to each appointment.
h)Upon his release from Auckland Central Remand Prison he is to go to the EM bail address by the most directly available route and to remain at the address pending the arrival of the EM bail authorities.
i) Otherwise the standard conditions of EM bail will apply.
[21] In addition, the applicant, or persons associated with the applicant, are to provide a cash surety in the sum of $50,000 to be deposited with the Registrar of the High Court at Auckland, and to be held in the Registrar’s trust account on interest bearing deposit.
[22] EM bail is to commence at 12 noon on the weekday following the giving of a certificate by the Registrar of receipt by him of cash or a bank cheque for the amount of the surety ordered.
C J Allan J
0
0
0