Kahika v Police HC Auckland Cri-2007-404-29

[2007] NZHC 1633

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-404-000029

BETWEEN  TYRONE TARANA KAHIKA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         16 February 2007

Appearances: Harvey Juran for Appellant

Ross Burns for Respondent

Judgment:      16 February 2007

JUDGMENT OF HARRISON J

SOLICITORS

Harvey Juran (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

KAHIKA V POLICE HC AK CRI-2007-404-000029  16 February 2007

[1]      Mr  Tyrone  Kahika  appeals  against  a  decision  in  the  District  Court  at

Papakura on 21 December 2006 refusing to grant him bail on various charges.

[2]      Mr Kahika and his brother have been charged as the two principal offenders together with nine others with participating in an organised criminal group, conspiracy to supply cannabis, possession of cannabis for supply, and selling cannabis.  The police allege that the Kahika brothers operate what is described as ‘a highly lucrative operation’ in selling cannabis cigarettes.  The activity is allegedly transacted through the medium of mobile telephones, either by phoning or texting. The police allege that the business has been earning revenue in excess of $10,000 weekly.

[3]      Judge  Sharon  McAuslan  refused  Mr Kahika’s  application  for  bail  on  the apparent ground that the likelihood of imprisonment was high and the offending was serious.  With respect, that ground is insufficient of itself.  At best, as Mr Burns for the Crown accepts today, it informs or relates to the mandatory consideration of flight risk.   However, there is no evidence before either the District Court or the High Court that Mr Kahika presents a real flight risk; that is, that he would fail to answer his bail.  To the contrary, his living conditions are settled.

[4]      The  Judge  failed  to  consider  either  of  the  other  two  mandatory  factors, namely whether Mr Kahika presented a risk of interference with witnesses or of re- offending while on bail.  Mr Kahika has no history of breaching Court orders.  His previous convictions relate principally to possession of cannabis in 1990 and 1991. Since then he has committed the offence of assault for which a suspended term of imprisonment was imposed in 2001.

[5]      I must approach the case afresh, as if it was an application de novo in this Court for bail.  I accept Mr Juran’s submission that Mr Kahika presents no risk of interfering with witnesses if granted bail.  Principally they are police officers.  The only  remaining  factor  is  whether  or  not  Mr Kahika  presents  a  real  risk  of  re- offending while on bail.   Mr Juran realistically acknowledges the existence of the risk but submits that it can be met by the imposition of appropriate conditions; in particular that Mr Kahika observes a curfew and lives at an approved address.  He

notes  that  all  other  alleged  co-offenders  except  Mr William  Kahika  have  been granted bail.  Against that, though, is the police allegation that the Kahika brothers are the principals in this cannabis dealing business.

[6]      I agree with Mr Burns that, while it is desirable in all cases to grant bail where conditions will meet all possible risks, it would be difficult, if not impossible, to impose conditions which might be effective or enforceable here.  The nature of the operation allegedly conducted by the Kahika brothers is such that they would be able to continue to run it from home even if subject to curfews.   Prohibitions against possession or use of mobile telephones are meaningless.  Assuming that the police case has substance, the Kahika brothers could continue to offend while on bail unimpeded by the imposition of conditions.

[7]      Accordingly, I dismiss Mr Kahika’s appeal.  However, I note that a pre-trial hearing is yet to occur.   At that stage Mr Juran may be in a position to review Mr Kahika’s circumstances and in particular the strength or otherwise of the police case against him.  In the event that the depositions do not disclose a compelling case,

Mr Kahika will be entitled to bring a fresh application for bail in the District Court.

Rhys Harrison J