Lowe v Police HC Auckland CRI-2005-404-111

[2005] NZHC 1709

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-404-111

BETWEEN

TRAVIS JAMES LOWE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:         4 May 2005

Appearances: Christopher Comeskey and Jessie Soondran for Appellant Kevin Glubb for Respondent

Judgment:      4 May 2005

JUDGMENT OF HARRISON J

SOLICITORS

Christopher Comeskey (Auckland) for Appellant Meredith Connell (Auckland) for Respondent

LOWE V POLICE HC AK CRI-2005-404-111 [4 May 2005]

[1]                 On 7 April 2005 Judge Tony Fitzgerald sitting in the District Court at Auckland refused to grant Mr Travis Lowe bail on charges of participation in a criminal group, possession of a shotgun without lawful purpose, and five charges of receiving stolen property.

[2]                 Mr Lowe  has  appealed  against  the  decision.   In  support  his  counsel,   Mr Christopher Comeskey, has filed a comprehensive and helpful synopsis of submissions.

[3]                 The appeal came before me for determination on 26 April 2005. Two questions were of particular concern. One was the likely date of depositions in the District Court and the likely date of trial here; the other was the weight placed by the police on alleged offending by Mr Lowe on a major scale which was not then the subject of charges. I adjourned the appeal until today for the police to deal with both issues.

[4]                 In advance of today’s hearing Mr Kevin Glubb for the police advised that on 2 May the police laid seven further charges against Mr Lowe of forgery, using and obtaining a document, receiving and burglary. Mr Comeskey has drawn attention to a  number  of  defects  in  the  informations.  He  also  submits  that  the  scale  of  Mr Lowe’s offending as disclosed by the new charges is not major. I disagree.  In  the event that the charges are proven, Mr Lowe will be exposed in totality to a lengthy term of imprisonment. The amounts at issue on the new charges are substantial. For example, one alleges his participation in a burglary which yielded over $75,000 worth of computer equipment; another alleges his participation in a burglary of a motor vehicle from which goods valued between $100,000 and

$150,000 were stolen. I should add that in a similar pattern to existing charges, a number of the tools taken from the second burglary were recovered from the property formerly occupied by Mr Lowe.

[5]                 Mr Glubb advises also that as a result of inquiries made by the police the District Court will be able to accommodate a three week preliminary hearing in August or September 2005. The estimated duration is a reflection of the number of accused; there are at least 10 and all are likely to be separately represented. A pre-

depositions date is set for 26 May 2005. In the event that Mr Lowe is committed for trial in this Court, a fixture should be available in February 2006.

[6]                 I endorse Mr Comeskey’s concerns about the prospect of delay. It has statutory ratification (s 8(2)(f) Bail Act 2000). Mr Lowe has been in custody since late March. If this appeal is dismissed he will likely remain in custody at least until completion  of  depositions  when  the  strength  of  the  Crown  case  is  known.    Mr Comeskey anticipates that the police will seek to delay the preliminary hearing when the case is called on 26 May, not out of bad faith but because of insufficient preparation. Mr Glubb assures me to the contrary.

[7]                 I am requesting the registry and Mr Glubb to liase with the District Court immediately to ensure that a firm fixture for depositions is allocated. It should not  be deferred or adjourned except for the most compelling reasons. Insufficient time for preparation or unavailability of counsel would not fall into that category. In the event of any material delays or slippage by the prosecution, Mr Comeskey will have grounds to make a fresh application to this Court for bail. Additionally Mr Glubb confirms that the Crown will make arrangements with the registry of this Court in the near future to ensure that courtroom 12 is kept available if possible for a trial in February 2006.

[8]                 Against that background I return to Judge Fitzgerald’s decision. To succeed Mr Comeskey must satisfy me that it was erroneous in principle, took account of irrelevant considerations or failed to take proper account of relevant considerations, or was plainly wrong. The Judge carefully considered all of the mandatory (s 8(1)) and discretionary factors (s 8(2)). He gave weight to the question of delay, although he did not have the additional information now available to me. Ultimately, after weighing all relevant factors, the Judge refused bail on the primary ground that     Mr Lowe presented a real risk of offending while on bail.

[9]                 Having reviewed the evidence and having the benefit of Mr Glubb’s supplementary memorandum summarising particulars of the additional charges, I am satisfied there was a proper evidential basis for Judge Fitzgerald’s conclusion. It has now been supplemented to the stage where I am independently satisfied of the

existence of the risk that Mr Lowe will offend while on bail. Indeed, if the police supplementary summary is correct, I regard that as an inevitability.

[10]             Accordingly, I dismiss Mr Lowe’s appeal against Judge Fitzgerald’s decision refusing to grant him bail. I repeat, though, that grounds might arise to justify  a fresh application if there are any substantive delays in the timetable for disposition of these charges.

Rhys Harrison J