Nieuwenhuijsen v Police HC Auckland CIV 2010-404-167

[2010] NZHC 759

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-167

BETWEEN  PAULUS PETRUS NIEUWENHUIJSEN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         25 May 2010

Counsel:         E Orlov and S Malaviya for Appellant

N Williams for Respondent

Judgment:      25 May 2010

ORAL JUDGMENT OF MILLER J

[1]      Mr Nieuwenhuijsen moves for bail.  Before me is an originating application for bail made after his committal to this Court for trial.  An appeal against an earlier refusal of bail in the District Court has been abandoned.

[2]      At the age of 50, and with no previous convictions, Mr Nieuwenhuijsen finds himself facing an array of very serious charges:

a)       On 17 March 2009 he was arrested in a hotel room with cocaine, methamphetamine and MDMA.   He is charged with possession of those drugs for supply.  He was bailed on those charges.

b)On 9 May 2009 he was again arrested, this time carrying drugs in a car.  The drugs were cocaine, LSD, MDMA and BZP for supply.  He is charged with possessing those drugs for supply.   He was granted

EM bail.

PAULUS PETRUS NIEUWENHUIJSEN  V NEW ZEALAND POLICE HC AK CRI 2010-404-167  25 May

2010

c)       On 26 February 2010, while on EM bail, it is said that he arranged for a prostitute to visit him, paid her for sex, but then stupefied her with a date rape drug and had sex with her when she was unable to consent. Charges in relation to that incident were laid on 1 March.  Since then he has been held in custody.

[3]      This narrative, the police say, demonstrates a very clear risk of reoffending while on bail, including offending while in any residence to which he is confined on EM bail.  It is not suggested that Mr Nieuwenhuijsen is a flight risk, or that he will interfere with witnesses.  Section 7(5) of the Bail Act applies.

[4]      Mr Nieuwenhuijsen denies guilt and alleges that the Crown case is weak.  He maintains that the drug offending is the responsibility of an associate, Geoff Betson, who had gained his confidence, and he says that the rape complaint is false.  On the material before me, the Crown case does not appear to be weak.  I observe that it includes physical evidence such as drugs, including the date rape drug.

[5]      I note that  the first  two  sets  of  charges  have  been  middlebanded  to  the District Court for trial but this Court retains a bail jurisdiction under s 16 of the Bail Act.  The third set of charges is still in this Court although the Crown has asked that they be transferred to the District Court.

[6]      The trial date has been set for 2 August but it is likely to be vacated with interlocutory applications foreshadowed on both sides.  The Crown seeks joinder for all three sets of charges, while Mr Orlov wants three separate trials.  He will also contest the first search, which was conducted without a warrant, and seek a discharge on the third set.

[7]      The issue in the District Court was whether the risk of further offending could be managed by EM bail.  The matter came to the District Court on 9 March, 3

May, and 5 May.  It is evident from the decisions of the Judge that she was subjected to  insistent  and  lengthy  submissions  from  Mr  Orlov  on  at  least  one  of  those occasions.   The EM bail application was never finally determined because of the

committal to this Court, but the Judge had intimated she might grant it if satisfied that someone would be present in the bail address 24/7.

[8]      In this Court there are affidavits complaining about police delays in providing disclosure and Mr Nieuwenhuijsen’s treatment while in prison.   He says that he suffers  severe  depression  and  claustrophobia,  and  has  been  subjected  to  death threats.  I should make it clear that I do not attach much weight to these.  Corrections is expected both to manage any risk from other prisoners and provide him with any treatment that he is prescribed by a doctor.  I observe that he is now in a segregated unit, and has been allowed to have his cell door open.   Mr Nieuwenhuijsen also complains that he has no access to a computer to prepare his defence.   In that, of course, he is in no different position to any other prisoner who has been remanded in custody.

[9]      The issue remains, as it was in the District Court, whether the risk of further offending can be managed by EM bail coupled with additional conditions, those conditions being designed to ensure that there is no offending n the bail residence.

[10]     Before me are affidavits from Jenny and Martin Sandifer.  They do not know Mr Nieuwenhuijsen but his daughter, Sophie, has hired them to ensure that there is an adult with Mr Nieuwenhuijsen at all times.  One of the Sandifers will stay with Mr Nieuwenhuijsen whenever his daughter is out of the apartment.   She is a university student and must attend courses for approximately 13 hours a week.  She has sworn an affidavit saying that she will live with her father and will ensure that any conditions imposed by the Court are met.

[11]     As some of these affidavits were sworn only yesterday, I adjourned the bail application this morning so that the police could speak to the deponents.  They have now done that.

[12]     The proposed EM bail address is Apartment 4E, 21 Hargreaves Street, St Marys Bay.   The lessor has consented and the apartment is suitable provided the police have unrestricted access to it, which will require that they be given all necessary access cards, keys, and codes.   In the EM bail report they oppose the

address on the ground that the source of income for the rent is unknown;   that Mr Nieuwenhuijsen may participate in other offending, presumably drug dealing, to fund it.  That seems to me speculative, particularly in circumstances where a trustee of a family trust, David McCall, has offered to stand surety in the sum of $50,000.  I note that Mr Williams did not press that particular objection today.

[13]     I am satisfied that the risk of further offending while on bail can be managed with EM bail coupled with conditions.  Mr Nieuwenhuijsen will be admitted to EM bail on the following conditions:

1.The bail address is Apartment 4E, 21 Hargreaves Street, St Marys Bay.   He is to be released from prison at 9am tomorrow.   On his release he is to travel directly to the apartment and there await the security officers;

2.        At  no  time  is  Mr  Nieuwenhuijsen  to  be  alone  in  the  apartment.

Another adult, namely his daughter Sophie or one of the Sandifers, must be in the apartment at all times.   Against the possibility that none of these three persons is available from time to time, another adult approved by the police may be substituted;

3.The  police  and  monitoring  officers  are  to  be  given  all  necessary codes, cards, or keys to ensure they have unrestricted access to the apartment.  The police may enter it at any time;

4.Mr  Nieuwenhuijsen  is  not  to  possess  or  consume  alcohol  or controlled drugs;

5.        He is not to contact the complainant H;

6.        No prostitutes are to be in the apartment;

7.        And lastly, his passport is to be surrendered.

[14]     The Court can accept a surety in its inherent jurisdiction.   I have hesitated over this because it would provide Mr Nieuwenhuijsen with an additional incentive to comply with conditions of bail, and I have decided that it is not necessary in this case.

Miller J

Solicitors:

Botany Law, Auckland for Appellant

Crown Solicitor’s Office, Auckland for Respondent