N v Police HC Auckland CRI 2008-404-132

[2008] NZHC 870

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-132

N

Appellant

v

THE POLICE

Respondent

Hearing:         10 June 2008

Appearances: R Mansfield for applicant

B Northwood for Crown

Judgment:      10 June 2008

JUDGMENT ON BAIL APPLICATION OF ALLAN J

Solicitors:

R Mansfield, Auckland  [email protected]

Crown Solicitor Auckland

N V  POLICE HC AK CRI 2008-404-132  10 June 2008

[1]      This is an appeal by Mr N   against the refusal of bail in the District

Court.

[2]      The background to his alleged offending may be briefly described.   The police have laid two sets of charges against him.   The first arises from his apprehension on 1 May 2008.  At that time he was stopped while driving his motor vehicle which was the subject of a statutory search.  In the vehicle the police found four clear plastic bags alleged to contain methamphetamine.  The quantity involved is thought to be about 4 ounces  which would have a  street  value  in  excess  of

$100,000.

[3]      A subsequent search of the appellant’s home took place that same day.   A further 5 grams of methamphetamine was found there.  Also found at the address, and apparently in the appellant’s possession, was cash in the sum of $67,000, although there is some evidence that this was money that had been made available to him by his parents.  A quantity of equipment and chemicals apparently relating to methamphetamine was also located.

[4]      More recently the appellant has been  charged with two  further  offences. They arise out of a very large scale operation conducted by the police as a result of which a very significant number of persons have been apprehended and charged. They include a number of persons associated with certain gangs.  The two further charges are of supplying methamphetamine.  One of those involves a large number of alleged co-accused and relates to the period between February and May 2008. The second charge is date specific and alleges the supply of methamphetamine to an unknown person on 23 April 2008.

[5]      When the question of bail came to be considered in the District Court on

2 May 2008, the appellant was facing the first charge only.  At that time, the District Court Judge refused bail because he considered there was a real and significant risk of flight, and/or offending whilst on bail.  The Judge referred specifically to the fact the charges are serious, that the appellant had previously failed to appear in Court to

answer his bail, and had twice breached Court orders in respect of a sentence of community work.

[6]      Mr Northwood indicated to the Court that the police remain opposed to the grant of bail, and points out that the case against the appellant is reasonably strong, in that there is real evidence of the finding of 4 oz of methamphetamine in the appellant’s car and a further quantity in his home, quite apart from intercept evidence which it is said implicates the appellant in the wider offending, the subject of later charges.   He points also to the appellant’s imperfect previous record in respect of compliance with Court orders;  to a conviction for possession of cannabis for supply and to a further offence of permitting premises to be used  for cannabis related purposes whilst on bail for a previous drug related offence.  The present offending is exacerbated, Mr Northwood says, by reason of the fact that the appellant was in possession of a knife and martial arts weapons at the time of part of the alleged offending.

[7]      The police opposition to bail is responsibly mounted, but I am satisfied that this is a case in which bail ought to be granted, and that the perceived risks can be significantly  ameliorated  by  the  imposition  of  appropriate  conditions.     I  am influenced in coming to that conclusion by delay problems which are unfortunately systemic in this Court in respect of large scale drug offending involving multi- accused trials.  Counsel are agreed that it is unlikely the charges against the appellant will come to trial until the year 2010.

[8]      Accepting for present purposes that the Crown can establish offending by Mr N   in respect of the quantities referred to by Mr Northwood, there is a real risk that any sentence imposed following conviction will have been largely served by the appellant by the time he is sentenced, assuming the ordinary parole conditions apply.  That situation is to be avoided by the Court whenever possible.  At times it comes close to an abuse of process.

[9]      Having regard to that consideration in particular, and to the availability of appropriate conditions, I am satisfied that bail must be granted.   It is granted accordingly, but on the following detailed conditions:

a)        The  appellant  is  to  reside  at  69  de  Havilland  Drive,  Goodwood

Heights, Manurewa, Auckland;

b)he is to be subject to a curfew at that address from 10 pm to 7 am daily;

c)        he is to report to the door when called upon by any police officer;

d)he  is  to  report  to  the  Manukau  police  station  each  Monday, Wednesday and Friday between 8 am and 4 pm;

e)       he  is  to  refrain  from  applying  for  any  passport  or  any  other international travel document;

f)        he is to refrain from any contact with his co-accused or with any witness in the trial in which he is involved;

g)       there is to be a surety in the sum of $100,000 provided by an adult person who is approved by the police.   In this instance a proffered surety is the appellant’s father, Ngai Van N  .   The security proffered by the proposed surety is in respect of the appellant’s parents’ house property at Manurewa which has a present equity exceeding $250,000.  Details of that property are to be found in the affidavit of the proposed surety sworn on 3 June 2008 and appearing on the Court file.

[10]     The  appellant  should  understand  that  the  police  opposition  to  bail  was properly mounted and continued.   The primary reason why the current appeal has succeeded is that of the significant delay which will inevitably occur prior to trial.  If the appellant  breaches  the terms  of  his  bail  in  any respect  he can  expect  little sympathy from a Judge of this Court.  He owes it to himself in the first instance, and to his family in the second, to ensure there are no such breaches.  He now has an opportunity to put his past behind him and to demonstrate that the confidence his family has shown in him is well founded.

C J Allan J