Jackson v The Police HC Ham CRI 2008-019-2337

[2008] NZHC 2285

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2008-019-2337

STEVEN ANDREW JACKSON

Applicant

v

THE POLICE

Respondent

Hearing:         29 April 2008

Appearances: M McIvor for applicant

J O'Sullivan for respondent

Judgment:      29 April 2008

JUDGMENT ON BAIL APPLICATION OF ALLAN J

Solicitors/Counsel : [email protected] Crown Solicitor Hamilton

JACKSON V THE POLICE HC HAM CRI 2008-019-2337  29 April 2008

[1]      This  is  an  application  by Mr Jackson  for  bail.    There  are  some  unusual features and it is necessary to recount the background in some little detail.

[2]      Mr Jackson currently faces a number of charges.  It is convenient to analyse these active charges in three groups.  First there are charges of theft and conversion, each relating to a motor vehicle.   Mr Jackson is for trial on those charges in the Hamilton District Court on 26-27 June next.

[3]      There is a further group of charges which are varied in character , but mostly involve the unlawful taking of or interference with a motor vehicle.  There is also a charge of giving false details and one of escaping from custody, the latter involving an attempt by Mr Jackson to evade the police by jumping into the Waikato River after being called upon by them to stop.  That group of charges is currently in the preliminary stages of the proceedings in the District Court.  All are to be dealt with summarily.

[4]      Finally, there is a charge of offering to supply LSD, now a class A drug. That charge must be heard in this Court.  Mr Jackson is to appear at the first callover in this Court on 27 June 2008, but the ultimate trial date is not yet known.  It is a proper inference that it will be some months away yet, although because the issues fall within a very narrow compass, it may be able to be allocated a relatively early back-up fixture.

[5]      By  reason  of  Mr Jackson’s  earlier  offending  and  previous  record,  the provisions of ss 12 and 16 of the Bail Act apply.  Accordingly there is an onus on him to satisfy the Court that it is appropriate that he be released upon bail.

[6]      A comprehensive report prepared by Mr T Schmidt, the EM bail assessor in this region, is before the Court.   It provides a great deal of valuable information. Mr Jackson seeks bail on the basis that he be subject to the electronic monitoring bail regime.  It is proposed that he reside at the residence of a friend in Hamilton.  The house has been assessed for EM purposes and it appears that there are no technical or other obstacles in the way of Mr Jackson’s residence at that house, if he is released

on EM bail.  The tenant  of the house at which it is proposed he would reside does not have a perfect criminal record, but there are no charges of great significance and the Crown does not suggest that she is not a suitable person with whom Mr Jackson could reside.

[7]      The Crown however opposes bail.   Indeed, counsel for the Crown submits that this is a case in which the Crown is able to demonstrate by reference to s 8 that bail ought not to be granted, and that once the onus imposed by s 12 is taken into account, the application must fail.

[8]      The Crown’s concerns are two-fold.  First it is said that there is a flight risk in the sense that Mr Jackson may not in the future attend the Court when required, and that his past history of compliance with bail conditions demonstrates his unwillingness or lack of ability to adhere to Court imposed conditions.   Counsel points to the fact that on three previous occasions it has been necessary for the Court to issue a warrant to secure Mr Jackson’s attendance at Court when he failed to attend as part of his bail conditions.  There is also the allegation of escaping from custody,  and  the  report  from  Mr Jackson’s  supervising  Probation  Officer  who describes him as non-compliant, as failing to report when required and as showing no interest in attending counselling for alcohol and drug abuse.

[9]      A perusal of Mr Jackson’s bail history tends to suggest there have been rather more than three occasions upon which he has breached his bail conditions.

[10]     The other ground upon which Ms O’Sullivan opposes bail is the Court cannot be satisfied, in her submission, that the applicant will not offend  while on bail despite the restrictions imposed by the EM regime.  Counsel points first of all to the applicant’s bail history which has been analysed by Mr Schmidt and which is said to comprise  some  36  offences  committed  while  on  bail.     In  addition  to  that, Ms O’Sullivan took me through some of Mr Jackson’s recent bail history.   The current alleged offence of offering to supply LSD appears to have been committed while he was on bail for other alleged offending.  Further, there have been two other similar instances in the recent past, including the apparent completion by Mr Jackson of a sentence imposed in the District Court at Pukekohe in November 2007, followed

very shortly thereafter by the alleged offending for which he will be tried in June

2008, that is the offending relating to the alleged theft of a motor vehicle.

[11]     Quite apart from that, there is a long history of offending while on bail, most of it for offences of dishonesty or involving motor vehicles.  Counsel’s submission is that Mr Jackson is unable to satisfy the onus he bears under s 12, namely to satisfy the Court there will be no offending during any period upon which he is released on bail, both by reason of his long list of offending whilst on bail, and because certain of his recently committed offences have been committed immediately, or very soon after, his release following completion of sentences of imprisonment.

[12]     As against that, Mr McIvor submits that the electronic monitoring regime provides a significant element of security not hitherto present, and that will go some way towards assuring the Court that Mr Jackson may well comply with the law now, although he seems to have been unable to do so for any lengthy period in the past. Moreover, Mr McIvor says, there are proper and substantial personal reasons why it would be appropriate to grant bail.  One relates to Mr Jackson’s health.  It seems he has a kidney problem which may require medical treatment at some stage in the not too distant future.  Another is that he wishes to avail himself of the opportunity of commencing drug and alcohol related programmes.

[13]     I will deal with the health issue first.  That must be a matter which weighs with the Court to some degree.  However, there is nothing to suggest that even if he remains in custody he will not receive appropriate treatment.

[14]     I attach very little weight to the second point because Mr Jackson has had ample opportunity in the past to engage in programmes which appeared to have been proper to him, and his Probation Officer has expressed the view that, at least for the time being, Mr Jackson is simply not prepared to take advantage of what is being offered to him.

[15]     In my opinion, Ms O’Sullivan’s submissions are soundly based.  There is a risk of further offending while on bail and also of the applicant not complying with the conditions of his bail.   In recent times he seems to have been quite unable to

refrain from offending while on bail, and he seems to have great difficulty in attending the Court when required.

[16]     I would  not  have  been  prepared  to  grant  bail  even  if  the  ordinary onus applied,  but  given  the  reverse  onus  which  s  12  imposes,  it  is  plain  that  the application cannot succeed.  In reaching that conclusion I have taken into account the usual problems which an accused in custody faces, including difficulty in instructing counsel, the lengthy period before a trial might take place, albeit that here an earlier trial may be a possibility because of the limited factual circumstances of the alleged offending, and also the consideration that a period in custody may tend to approach the period of imprisonment imposed in the event of a conviction.  But this last point is muted somewhat by reason of the fact that Mr Jackson currently faces a number of active charges which seem to relate to several separate factual situations.  There is a significant possibility that if these prosecutions, or some of them, succeed, the total period of confinement which he faces will be well in excess of the likely period for which he will be on remand in custody.

[17]     For those reasons the application is refused.

C J Allan J