N v Police HC Auckland CRI 2007-092-773

[2008] NZHC 2237

This case has been anonymized

ORDER PROHIBITING PUBLICATION OF ANY PART OF THE PROCEEDINGS (EXCEPT THE OUTCOME) UNTIL FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-092-00773

N

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 March 2008

Appearances: A Malik for Applicant

KJ Glubb for Respondent

Judgment:      19 March 2008

ORAL JUDGMENT [NO. 1] OF ASHER J [Bail Application]

Solicitors:

Meredith Connell, PO Box 2213 Auckland

A Malik, Barrister, PO Box 210 Shortland Street Auckland

N V NZ POLICE HC AK CRI 2007-092-00773  19 March 2008

[1]      It is now 5:15 pm in the afternoon of Wednesday 19 March 2008, and I am giving  judgment  on  an  urgent  application  for  bail  brought  on  behalf  of  N  .  Mr N   presently faces charges of possession of methamphetamine for supply, possession of precursor substances and possession of a pistol.  The case is not yet set down for trial as there have been extensive pre-trial applications.  It is set down for a callover in April.

[2]      Mr N   was initially granted bail.  A further bail hearing was heard before Keane J on 28 September 2007 in which the issue was whether bail should continue given that Mr N   had allegedly breached his curfew.  Ultimately Keane J was not satisfied that bail should be revoked because of a breach that might have been no more than technical.   He concluded by saying that he would give Mr N   the benefit of the doubt but that should the matter happen again, “any such claim by him might be treated more sceptically”.

[3]      The police arrested Mr N   yesterday, Tuesday 18 March 2008.   I have been given a summary of facts and a handwritten report from the police.   The summary of facts states that Mr N   was observed sitting in the passenger seat of a vehicle with a known associate smoking methamphetamine from a glass pipe.  It is alleged that he passed the pipe to the associate who did the same and passed it back. He  has  been  charged  with  possession  of  methamphetamine  in  relation  to  that incident.  Mr N   appeared in the District Court this morning on that charge and was granted bail in relation to that charge.  The incident giving rise to that charge constitutes an alleged breach of bail on the earlier charges.   Police consequently arrested Mr N   pursuant to s 59 of the Bail Act 2000 (“the Bail Act”).  Mr N   appears before me on the basis of that breach.

[4]      Mr Malik appears for Mr N  .  It is the essence of his submission that the police allegation of methamphetamine consumption is strongly denied and will not proved, and that therefore it has not been established at this point that any breach of bail has occurred.

[5]      The argument revolved at least in part around the words of s 59 of the Bail Act.  That section states that a defendant who has been released on bail under a drug charge pursuant  to  the  provisions  of  s 16  of  the  Bail  Act 2000  can  be  arrested without warrant by the police if a member of the police believes on reasonable grounds that the defendant is breaching a condition of bail.  The section provides:

59       Arrest of defendant charged with drug dealing offence

(1)If  a  defendant  has  been  released  on  bail  under  section  16,  any member of the police may arrest the defendant without warrant if—

(a)the member of the police believes on reasonable grounds that the defendant has absconded or is about to abscond for the purpose of evading justice; or

(b)the police have been notified in writing by any surety for the defendant that the surety believes that the defendant has absconded or is about to abscond for the purpose of evading justice, and the member of the police is satisfied that there are reasonable grounds for that belief; or

(c)the member of the police believes, on reasonable grounds, that the defendant has broken, is breaking, or is about to break, any condition of bail (whether imposed under section

31, or otherwise); or

(d)the police have been notified in writing by any surety for the defendant that the surety believes that the defendant has broken, is breaking, or is about to break, any such condition of bail, and the member of the police is satisfied that there are reasonable grounds for that belief.

(2)A defendant who has been arrested under subsection (1) must be brought before a High Court Judge as soon as possible, and in any event not later than [72] hours after the arrest.

…

The relevant condition here is that Mr N   is not to consume drugs.  Mr N   appears now some 30 hours after the arrest.  There is no suggestion that the police have not promptly produced him to the Court.

[6]      Section 59(4) provides:

59       Arrest of defendant charged with drug dealing offence

…

(4)      If a defendant is brought before a High Court Judge under subsection

(2), the Judge may,—

(a)if satisfied on the balance of probabilities that the defendant has  broken,  was  breaking,  or  was  about  to  break  any condition of bail, remand the defendant in custody; or

(b)      release the defendant.

[7]      It is the essence of Mr Malik’s submission that s 59(4) requires the Court to release Mr N   tonight because the Court cannot be satisfied on the balance of probabilities at this point that the defendant has breached any condition of bail.  That is an issue he submits that  can  only be determined  on  a hearing of  the police evidence and any evidence that Mr N   might wish to adduce.  He submits that given the fact that a breach cannot be established on the balance of probabilities the Court is bound in terms of s 59(4)(b) to release Mr N   immediately.

[8]      Mr Glubb for the Crown resists that submission and submits that the Court has a discretion as to whether to release Mr N   or not and that it should not do so in the interim, pending a hearing on whether a breach of bail is proven on the balance of probabilities.  He has contacted the police officer who can be available for a Court hearing at 2:15 pm tomorrow, when that officer can give evidence as to what was seen, and be cross-examined.  He submits that until that hearing takes place the Court has a discretion as to whether or not to grant bail, and that it should not grant bail in the interim period.

Discussion

[9]      It is relevant first to note the provisions of s 8(3), a recent amendment to the Bail  Act 2000  which  deals  with  the  issue  of  the  relevance  of  a  breach  of  bail condition.  It provides:

8     Consideration of just cause for continued detention

…

(3)For the avoidance of doubt, in considering whether there is just cause for continued detention under this section, a breach of bail conditions may only be taken into account under subsection (2)(e) in

so far as it is relevant to whether there is a real and significant risk that the defendant may do any of the things set out in subsection (1)(a).

The section can be seen as a response to the decision of R v Ropiha CA325/05

28 September 2005 and a number of High Court decisions that have followed it including Te Kanawa v Police HC AK CRI-2005-404-381 9 December 2005, Simon France J, Quin v Police HC AK CRI-2004-044-7103 13 December 2005, Asher J, and Levika v Police HC AK CRI-2005-404-402 20 December 2005, Simon France J.

[10]     Section 59(4) does not oblige the police to immediately adduce all relevant evidence to establish on the balance of probabilities that there has been a breach at the first call.  On occasions the police evidence at the first call can be sketchy and the time for hearing limited, and if the police allegations are strongly contested it can be inappropriate for the Court to reach a decision under s 59(4).  It is better to adjourn for a s 59(4) hearing where both parties have time to prepare and give evidence if there is a contest, and for the Court to give them adequate hearing time.

[11]     Here the timeframe is so short that the police have not had an opportunity to adduce evidence today.   The police have  acted promptly in bringing Mr N   before the Court and have met their obligation to do so as soon as possible and in any event not later than 72 hours.    Section  59(2)  and  59(4)  do  not  require  the decision as whether there has been a breach of bail proven on the balance of probabilities be made within the 72 hours.  The section does not require the Court to opt one way or another on the first call.  It would be artificial for the Court to reach any final assessment as to whether it is satisfied on the balance of probabilities that there has been a breach on the basis of a summary of facts only.

[12]     However, the fact that it is difficult to reach a conclusion on the balance of probabilities at a first call hearing on the papers such as this does not mean that the Court’s hands are tied and that the automatic consequence must be release of the defendant as suggested by Mr Malik.   I do not consider that to be the intention of s 59(4).    Rather,  if  the  police  have  discharged  their  obligation  to  produce  the defendant  before the  Court  promptly,  I consider that  the  Court  has  the  general discretion it always has in relation to bail matters as to whether to allow bail in

accordance with the presumption, or refuse it pending a bail hearing with evidence to determine the s 59(4) issue.  In the interim, while a hearing is pending as to whether there is proof on the balance of probabilities of a breach of bail, the Court must focus on the general considerations set out in ss 8 and 16 of the Bail Act 2000.

[13]     In exercising that general jurisdiction, the Court is entitled under s 20 to take into account a summary of facts.  It is a relevant statement and the information in it would be “admissible in a court of law” if produced by the appropriate person.  In exercising its discretion as to what should happen in the interim pending the hearing on defended allegations of breach, the Court must not overlook the presumption of innocence.   It must form the best assessment it can on the very limited material before it.

[14]     I consider that the evidence presently available is enough to show a real and significant risk that the defendant may offend while on bail.  The view I express is only interim, and if at the hearing of the police allegations under s 59(4) it is not established that the defendant has breached bail on the balance of probabilities in terms of s 59(4), release will follow.

[15]     I note that the Court is able to offer a very early hearing of the substantive allegation of breach of bail.   That hearing will be at 2:15 pm tomorrow.   It is fortuitous that the Court has the time and that the relevant police officer is available. Even if the delay had been longer I would have been inclined to refuse bail providing the longer delay was not unreasonable, and I was satisfied that the police were taking all reasonable steps to collect their evidence and make it available to the Court.

Summary

[16]     In summary I do not consider that the specific provisions in s 59 have the effect of removing the Court’s general discretion as to whether to grant or deny bail, still bearing in mind the presumption.    On the basis of the summary of facts I am satisfied to the requisite standard that bail should be declined until the hearing at

2:15 pm tomorrow.  I accordingly refuse bail.

…………………………… Asher J