M v Police HC Auckland CRI 2007-404-233

[2007] NZHC 2006

This case has been anonymized

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-233

BETWEEN  M

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         17 August 2007

Appearances: Lester Cordwell for Appellant

Howard Lawry for Respondent

Judgment:      17 August 2007

JUDGMENT OF HARRISON J

SOLICITORS

L Cordwell (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

M V POLICE HC AK CRI 2007-404-233  17 August 2007

[1]      Mr M   appeared in the District Court at Waitakere on 6 August

2007  on  a  number  of  charges   under   the   Misuse   of  Drugs   Act   including manufacturing methamphetamine, possessing precursors for that purpose, possessing chemicals for that purpose, and possessing equipment.

[2]      Mr M  ’s application for bail was denied by Judge Tremewan in a careful and comprehensive oral decision.  Her Honour recorded the elements of the police case as follows:

[8]       I now turn to what the police say happened. They say that yesterday [5 August]  at  roughly  6:30pm,  they  received  information  that  a  strong chemical smell was coming from an address in Aetna Place in Henderson and that a man had been observed with test tubes and beakers filtering liquid. Police say they subsequently invoked s18 of the Misuse of Drugs Act 1975 forcing their way into the address, and there they located the defendant, they say, in the dark, hiding. The police say that the factory room was so pungent with the chemical smell that the attending officers and defendant  had to evacuate the premises.

[9]       The subsequent attendance of a member of the police clan lab team resulted in the location of 20-30 litres of Toluene, two litres of hydrochloric acid, one 500g container of sodium hydroxide, and four containers of ‘damp rid’. These are chemicals and precursors used in the manufacture of methamphetamine. Also located were various buckets containing as yet unidentified liquid chemicals along with an assortment of beakers, flasks and other  glassware and a  hydrogen chloride generator.  This  equipment,  the police say, is a pre-requisite for the manufacture of methamphetamine. The defendant elected not to give an explanation to the police, as is his right.

[3]      Judge Tremewan then reviewed all the competing arguments for and against bail.  She acknowledged the presumptions in favour of innocence and the obligation on the police to establish just cause for continued detention.   However, after considering all relevant factors, she declined the application.  She was satisfied there was a real risk of re-offending by Mr M   while on bail: at [17], [18] and [19].

[4]      In that  context it  is of particular relevance that  Mr M   was arrested on

3 February 2007 on seven charges of possession of a firearm, one of possession of a needle,  one  of  possession  of  cannabis,  one  of  possession  of  equipment  to manufacture methamphetamine, and one of possession of utensils to manufacture methamphetamine.    He  appeared  in  the  District  Court  at  Waihi.    His  counsel, Mr Lester Cordwell, did not appear for him in that Court and cannot explain whether

he was remanded in custody or on bail.  On 26 July Mr M   was remanded on bail to appear again on those charges on 22 August.

[5]      Today Mr Cordwell confirms Mr M  ’s intention to deny the Waihi charges. His defence is that his partner, one Shona Picket, was in possession of the relevant material and firearms.  Advice of this defence does not sit easily with an affidavit sworn by Mr M   in support of his appeal.  He says that until arrest on these charges on  5 August  he  was  living  with  Ms Picket  and  her  three  children  and  that  he provided  financial support  for them when they were  in Ms Picket’s care.    This assertion  is   inconsistent   with  a   defence   which,   if  accepted,   would   imperil Ms Picket’s liberty.

[6]      In apparent answer to a query raised by Judge Tremewan in her decision relating to the reason for Mr M  ’s presence on the property on a Sunday evening, he says in his affidavit that he was working when arrested:

I was at the commercial premises of a client and conducting a stock take of his business.   My laptop computer was with me and set up to enter stock information.

As far as I was aware all that was stored in the factory unit was second hand goods and equipment which my client sold on the internet.   There were second hand items of furniture, car parts and other items.   My client is a sole-trader dealing in second hand goods.

[7]      I must say that this explanation is unsatisfactory.  If anything, it only adds to the weight of the case against Mr M  ’s application for bail.  He does not identify, for example, the client, the reason for his presence at a stock take during a Sunday evening  150 km  from  home,  the  purpose  of  the  stock  taking,  or  perhaps  most unusually his failure to detect the pungent aroma which led somebody outside the building to call the police.   While Mr Cordwell today says that  Mr M   has no previous experience in methamphetamine manufacturing and is likely to be an innocent  in the area of its nasal detection,  an objective  observer  may conclude otherwise.  All the circumstances point to a strong if not overwhelming case against Mr M  .

[8]      In support of the appeal Mr Cordwell submits that Judge Tremewan gave undue weight to discretionary factors, namely the nature of the offending and the

strength of the evidence and the probability of conviction: s 8(2)(a) and (b) Bail Act

2000.   She was influenced by these factors, but that does not suggest an error of itself.   What is decisive in my judgment is her satisfaction of the presence of the mandatory risk, namely that Mr M   presented a real risk of re-offending: s 8(1).  In this context the strength of the prosecution case on the second set of charges assumes real significance.  Mr M   was arrested in the circumstances outlined while he was on bail.  The risk of his re-offending is, I agree, very strong.

[9]      In all the circumstances I am not satisfied that Judge Tremewan erred.  To the contrary, she was plainly correct.  Accordingly, the appeal is dismissed.

Rhys Harrison J