Jongejan v Police HC Auckland CRI 2005-044-7085

[2007] NZHC 2084

NOT TO BE PUBLISHED UNTIL FINAL DISPOSITION OF TRIAL

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-044-007085

UNDER  the Bail Act 2000

IN THE MATTER OF     an appeal against refusal to grant bail

BETWEEN  SIMON CARL JONGEJAN Applicant

ANDPOLICE Respondent

Hearing:         31 August 2007

Appearances: M S Gibson for  Applicant

A J Pollett for Respondent

Judgment:      31 August 2007

JUDGMENT OF COOPER J ON BAIL APPLICATION

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland.

Copy to:

M S Gibson, 34 London Street, St Marys Bay, Auckland

JONGEJAN V POLICE HC AK CRI 2005-044-007085  31 August 2007

[1]      Simon Carl Jongejan, was arrested on 27 October 2005.  He is to be tried in this Court on ten counts brought under the Misuse of Drugs Act 1975.  They allege manufacture of methamphetamine, possession of methamphetamine for supply and sale of that drug, as well as the usual accompanying charges concerning possession of equipment and substances for the purposes of manufacture of the drug.

[2]      There is a further charge that alleges the possession of an explosive for an unlawful purpose contrary to s 45(1) of the Arms Act 1945.  That charge is based on the alleged possession by the accused of 12 gauge shotgun ammunition and .22 calibre rifle ammunition.

[3]      The prosecution has had a fraught procedural history, for reasons which are not of Mr Jongegan’s making.  A trial date was initially set for 27 February 2007, but his co-accused, one Tamarangi Huka was involved in a serious motor vehicle accident whilst on bail.  That had the result that the trial date was vacated, and a new date was established for the trial to commence on 20 August 2007.

[4]      On that day, however, Mr Huka failed to appear.  A Crown witness was also unavailable.  Mr Gibson described the Crown witness as one of the principal Crown witnesses.  Ms Pollett has suggested that that is not a proper description conceding however that the witness was one in which the defence were interested.

[5]      The fixture was again vacated.  A new date has been set for 14 April 2008.

[6]      Mr Jongejan was originally granted bail by the North Shore District Court. That followed his arrest in October 2005.  Whilst he was on bail, he was arrested in respect of a second allegation that he had manufactured methamphetamine.   On

3 October 2006, Potter J revoked the bail.  She considered that  there was significant evidence to suggest that further offending had been committed.  At paragraph [5] of her decision she said:

… the firm evidence that Mr Jongejan is simply carrying on at the bailed address activities in relation to  the  manufacture  of  methamphetamine  in

respect of which he has been previously charged,  convince me that without doubt the Crown’s application should be granted.

[7]      A further  application for bail was  brought  following  the  vacation  of  the fixture that had been set down for 27 February 2007.  That application was heard by Williams J on 27 March 2007.  He noted the unfortunately lengthy period of time which  would  elapse  before  the  trial  was  able  to  take  place.     He  said  at paragraph [11]:

That is most unfortunate but in all the circumstances the only conclusion realistically  open  is  that  no  ground  has  been  made  out  for  granting Mr Jongejan bail and his application is accordingly dismissed.

[8]      That  conclusion  was  based  on  the  facts  that,  as  earlier  discussed  in  his decision:

a)       When granted bail on 10 November 2005 in the North Shore District Court, the presiding Judge had specifically warned the accused of the possibility of revocation of bail in the event of a breach in view of a history of breaches of bail.

b)As Potter J had found, there was clear evidence that whilst on bail for a charge of manufacturing methamphetamine the applicant had been found at the address to which he had been bailed with a number of items related to methamphetamine manufacture.

c)       There was in the circumstances, clearly a risk that if admitted to bail again he might continue to offend.

[9]      The address to which the accused had previously been bailed was at 71

Stillwater Crescent,  Stillwater.    That  is  where  the  manufacturing  offences  were alleged to have taken place.  I mention now, that although various charges were laid in respect of the matters to which Potter J had referred, and which had arisen as a result of a search undertaken by the police on 29 August 2006, were dismissed on 29

June 2007.  Ms Pollett explained that at the depositions stage a necessary witness did not appear.   The witness was a police officer currently serving in the Solomon Islands.   There is apparently an intention on the part of the Crown to relay those

charges and to apply to have them added to the current indictment, by-passing the depositions stage so that all matters may be dealt with together and at one time.  Be that as it may, the current position is that there are no extant charges relating to the offending which Potter J’s decision discussed.

[10]     The present application is advanced on the basis that the accused would live with his partner, Ms Moore, and her two handicapped children at an address in Green Bay.   Mr Gibson, of course, emphasises the length of time that Mr Jongejan will have been in custody by the time the trial takes place.   Potter J’s judgment was delivered on 3 October 2006.  The period that will have elapsed by 14 April 2008 will, by my calculations, be approximately 18 months.

[11]     Mr Gibson further submits that conditions of residency and reporting would adequately meet any relevant concerns that might arise under s 8 of the Bail Act

2000.

[12]     For the Crown Ms Pollett opposes any grant of bail.  It is accepted that the reasons for the delays which have occurred in this case are not attributable to actions of the accused.   However, she points to the risk of re-offending.   In that respect, having been released on bail in respect of the current charges, she refers to the facts discussed in Potter J’s judgment, relying on them even though there are now no longer  any charges  extant in respect  of  what  was  found  at  the  address  on  that occasion.  Put simply, the Crown says that there will be a risk of further drug related offending if the accused is now released on bail.  She points out that, ammunition having been found in respect of the 2005 searches of the premises, in August 2006 a firearm was found at the address.  She submitted that this adds to the risk.  It is not part of the Crown’s case, however, that there would be any risk that the accused, if released on bail, would fail to appear at the rescheduled trial date.

[13]     I accept that there can be no assurance in a case such as the present, that would guarantee a person such as the accused, would not re-offend if released on bail.

[14]     However, I consider that there are conditions available which should greatly reduce  any  such  risk  in  the  present  case.     First  of  all,  it  appears  that  the manufacturing offending that is alleged to have occurred at 7 Stillwater Crescent, took place in a house which the accused was doing up and which he visited from time to time for that purpose.  I say that notwithstanding the fact that that was the address to which he was subsequently bailed.

[15]     Here it is now proposed that he be bailed to an address in Green Bay which is a long way from Stillwater.  Further, he would be residing there with a family with which he is apparently well familiar.  Ms Moore, resides at the property with her two children aged 15 and nine years.  One daughter has a physical disability which she has had all her life.   She suffers from cerebral palsy.   The other daughter has an intellectual disability, she suffers from Asbergers Syndrome.  In an affidavit that she swore on 28 August 2007 she deposed to the accused being helpful and patient in caring for the girls.  If the accused were granted bail she indicates that he would be welcome in the home and anticipates that he would be of considerable assistance with her children, who she says have missed him.

[16]     Ms Moore has no previous convictions, and having given Ms Pollett the opportunity to ascertain from the police whether anything was known, the police have not been able to instruct her on any basis on which it could be concluded that the address was unsuitable.

[17]     A condition which required the accused to reside at that address and other conditions which prevented him from returning to the property at Stillwater would, in my view, greatly reduce any risk that he would again manufacture methamphetamine.  It seems to me that the Green Bay address would in fact be a most unlikely place for him to engage in that activity.

[18]     There is no doubt that the offending alleged against the accused is serious. However, it is unsatisfactory to contemplate that he should remain remanded in custody for as long as would have occurred here, if he were remanded in custody until the trial date, without having the charges brought against him tried.

[19]     Given  that  the  Crown  does  not  refer  to  risk  of  flight  it  is  in  my  view appropriate for bail to be granted in this case subject to conditions.

[20]     Bail is granted on the following conditions:

a)        The accused is to reside at all times at 60 Golf Road, Green Bay

Auckland.

b)He is to remain there between the hours of 7.00 p.m. and 6.00 a.m. on every day.

c)        He is to present himself at the door forthwith if police call to inquire as to his presence at the address.

d)       He is not at any time to travel north of the Auckland Harbour Bridge.

e)        He is to surrender any passport that he currently has and he is not to apply for any other travel document.

f)        He is to report to the police at Avondale on Mondays, Wednesdays and Fridays between the hours of 8.00 a.m. and 6.00 p.m.

g)       He is not to consume alcohol or any other non-prescription drugs.

[21]     Notwithstanding the condition preventing his travel north of the  Harbour Bridge, he may do so solely for the purpose of attending, as may be required from time to time, at the North Shore District Court, travelling directly there and returning to Auckland City forthwith after his appearance at the North Shore District Court.