Kelly v Police HC Auckland CRI 2005-404-99

[2005] NZHC 1650

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-000099

GLENN WARD KELLY

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 April 2005 Appearances: P Winter for Appellant

A Adams for Respondent Judgment:    18 April 2005

JUDGMENT OF SIMON FRANCE J

Counsel:

Mr P Winter, Auckland Solicitors:

Crown Solicitors, Auckland

KELLY V POLICE HC AK CRI 2005-404-000099 [18 April 2005]

[1]    The Appellant was caught entering New Zealand with 299 grams of cocaine secreted in his body, or within his underwear. He had travelled from Bolivia, where he was operating a business for the last two-and-a-half years. His family is New Zealand based. His parents live in New Zealand and his daughter lives with his former wife.

[2]    Mr Winter queried the size of the importation and the value. He noted that in the summary of facts the size of the importation was described as 408 grams with an estimated value of $570,000 to $650,000. By the time of the Police opposition to bail, the amount was confirmed at 299 grams but the value was now listed as

$837,000. It was this latter figure that is referred to in the judgment under appeal.

[3]    Ms Adams suggested that the explanation for the change may be that once analysis had been completed the purity of the drug was known.

[4]    For my part, whatever the explanation and value, and contrary to the tenor of Mr Winter’s submission, I am satisfied that this amounts to a substantial importation into New Zealand.

[5]    Bail was declined in the District Court by Her Honour Judge Barbara Morris. Her Honour considered that the flight risk was too great to allow anything other than a custodial remand. In reaching that decision Her Honour considered all the relevant matters.

Competing submissions

[6]    Before me, Mr Winter based his application on the propositions that the flight risk was over-estimated, that a surety was now available, and that there was a degree of inconsistency in the Police opposition to bail in this case, compared to another specific case to which he referred.

[7]    Concerning the flight risk, Mr Winter points to the connections Mr Kelly has with New Zealand, namely his parents and his daughter. The Crown contested this, on the basis that the parents did not even know he was visiting, and there was no

evidence from his daughter that would allow the Court to infer her presence would be a constraining factor.

[8]    Mr Winter said from the bar that he had been personally contacted by the daughter who was anxious to come and lend her support. Concerning the parents, he pointed to the fact that they were now offered as the address to which Mr Kelly would be bailed, and that they were offering a surety, being all their savings. Concerning the surety, Ms Adams suggested that the sum of $25,000 was simply inadequate to provide any disincentive. It could easily be repaid to the parents if the Appellant were to flee.

Decision

[9]    The cases for both sides have been well put. I take as my starting point the decision of Police v B [2000] 1 NZLR 31. That decision of the Court of Appeal both sets out the relevant principles, and states clearly the role of a Court on a bail appeal. This being an appeal, it must be shown that Her Honour either erred in principle or was plainly wrong. I am satisfied that neither is the case.

[10]   The objective reality is that the Appellant has been caught red-handed. The size of the importation is such that his jeopardy is both apparent and substantial. Although born in New Zealand he travels on an Australian passport. He has lived in Bolivia for the last two-and-a-half years. I appreciate that it is easy to attribute significance to what can be innocent or benign facts, but the reality is that in the context of someone caught red-handed bringing into New Zealand a significant quantity of a Class A drug, these are factors that do not give one any comfort. I am satisfied that Her Honour’s decision was one well open to her.

[11]   Out of respect to Mr Winter’s submissions, however, I address three main planks on which he relies. First, the offer of a surety. I accept the Crown’s proposition here that the sum of money involved, even though undoubtedly accompanied by significant emotional pressure in terms of the hardship it would cause to his parents should the Appellant act in a way to cause the surety to be forfeited, is insufficient to amount to a real disincentive.

[12]   Mr Winter also indicated a willingness on the part of Mr Kelly to be subject to curfew and electronic monitoring. He emphasised that the Appellant has considerable business interests in Bolivia and his detention in jail makes it impossible for him to address these interests. He suggested that if his client were able to attend to matters and obtain some peace of mind concerning that, he may be in a better position to focus upon his present situation and what action he should take as regards it.

[13]   Whilst there is validity in much of what Mr Winter says, in my view the response must be that if one’s concerns for family and business had not prevented the Appellant from making the choice he apparently has, namely to bring the drugs into the country, then they are not a particularly compelling feature on which to now grant him bail. Put bluntly, the time for concern about those matters was prior to engaging in this conduct.

[14]   The third matter was the apparent lack of consistency in Police opposition. Mr Winter placed before me a similar case from two weeks ago where the size of importation was greater, and there was no Police opposition to bail. I have some familiarity with that matter, as the bail application came before me. It was in fact unopposed and came before me by consent memorandum. I was sufficiently surprised and concerned at that approach that I required counsel to appear before me, notwithstanding the lack of opposition to bail by the Crown. The person in question in that case was the New Zealand citizen who was meeting the drug courier. However, inquiries during the course of this hearing confirmed that the drug courier was also granted bail (in the District Court). I can add to the submissions of Mr Winter that recently I have presided over a larger methamphetamine importation trial where both the South African born courier, who had no contacts at all in New Zealand, and the New Zealand citizen who was meeting the drugs, both obtained bail without opposition.

[15]   I have not been based in the Court long enough to form any informed assessment of the issue of consistency or otherwise. I admit that the differences between the three cases I have discussed are somewhat elusive to me, but would prefer not to go beyond that. In the end I must deal with the case before me. As

noted, and bearing in mind the recognition in Police v B that drug offending always carry greater flight risks, I am satisfied that the jeopardy, together with the Appellant’s circumstances – namely, the passport under which he travels and the fact that he has been living in Bolivia for the last two-and-a-half years – make it inappropriate to grant bail. Certainly, they are circumstances that bring the refusal to grant bail well within Her Honour’s discretion.

[16]The appeal is accordingly declined.

Simon France J