N v Police HC Auckland CRI 2010-404-142

[2010] NZHC 829

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-142

N

v

NEW ZEALAND POLICE

Hearing:         30 April 2010

Counsel:         S Lance for Applicant

A McClintock for Respondent

Judgment:      30 April 2010

JUDGMENT OF SIMON FRANCE J

[1]      Mr N    applies  for  bail.    Although  charged  on  21 January 2010,  and remanded in custody on that day, this is the first application for bail.  Mr N  ’s former wife is a co-accused and I am advised has now received bail.

[2]      Mr N   is charged with two sets of offending:

a)        first he is charged with receiving a stolen BMW car worth $200,000.

The car was located, under cover, in his apartment carpark.  He told police his wife had bought the car and he knew nothing about it;

b)when his apartment was searched, there was found 31.52 grams of methamphetamine, $35,000 in cash and several snap lock bags.  The

N V NEW ZEALAND POLICE HC AK CRI 2010-404-142  30 April 2010

summary of facts records Mr N   as saying he admitted selling methamphetamine in exchange for cash or stolen items.   At today’s hearing I am advised Mr N   gave a video interview and made similar admissions;

c)        Mr N    is  charged  with  receiving,  over  a  two  year  period, watches, rings and electrical items.

[3]      Mrs N   told police the car was Mr N  ’s and she had no knowledge of the drugs or stolen items.  She said, however, the money was hers and that she received it from overseas from a person who owed her money.  She faces the same charges.  The couple are no longer together.

[4]      Mr N   has previous convictions for unlawfully possessing a firearm, possessing methamphetamine and allowing his premises to be used for manufacture of methamphetamine.  He presently faces two charges of possession of ecstasy and cannabis.

[5]      Mr Lance refers to the presumption of innocence, and a relatively modest previous record.  It is noted there is no history of bail breaches, and there may be significant delays till trial.  In Mr Lance’s submission the Crown case is some way from readiness, and there is a possibility of pre-trial application.

[6]      Mr N   has filed an affidavit.  He says he has three children and seven grandchildren in New Zealand.   He proffers two bail addresses one of which is acceptable to the police.  He makes no comment on the case other than that he has pleaded not guilty.  He says he will not offend whilst on bail.

[7]      The Crown opposes bail.  It notes the jeopardy that Mr N   faces, given his admissions as they stand.  That jeopardy is submitted to create a risk of flight.  It is noted that he faces other drug charges albeit for possession only, and has previous drug convictions.   The opposition was, in my view, properly put and properly not overstated.

[8]      There is always a risk of flight when one faces the jeopardy that Mr N   faces.  Other than the risk inherent in the charge and his present admissions, there are no factors that tell against the grant of bail.  Those risks are not in my view sufficient in themselves in this case to deny a grant of bail and I will proceed to do so on the following conditions:

a)        that he reside at 4 Birdwood Road, Papatoetoe;

b)that  he  not  hold  a  passport  nor  make  any  attempt  to  obtain  one (Mr N    at  one  stage  apparently had  a  passport  but  it  cannot presently be located.  The inability to presently surrender it is not a reason on this occasion for preventing release into bail.  If it is located it is to be surrendered);

c)       Mr N   is to be report on Monday’s and Friday’s to the police station at Manukau;

d)       he is not to associate with co-accused or any Crown witnesses;

e)        he is not to be in possession of illicit drugs.

[9]      I add the last condition about illicit drugs for a specific purpose.  There is in Mr N  ’s criminal history a record of possession of drugs.  I wished to make it plain that if on bail any circumstances arise that associate him with drugs be it for personal use or any other circumstance he can expect that a Court will look very dimly on it and will be unlikely to continue a remand on bail.

Solicitors:

S Lance, Barrister, PO Box 308, Auckland, email: [email protected]

A McClintock, Meredith Connell, PO Box 2213, Shortland Street, Auckland, email:  alysha[email protected]

Simon France J